Uttarakhand High Court
Through: Shri K. H. Gupta And Ms. Irum vs Union Of India on 27 July, 2022
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (MS) No. 1682 of 2022
Ajay Dabas. ................Petitioner.
Through: Shri K. H. Gupta and Ms. Irum
Zeba, learned counsel for the petitioner.
-Versus-
Union of India
and others. .........Respondents.
Through: Shri Rakesh Thapliyal, learned
Assistant Solicitor General with Shri
Pankaj Chaturvedi, learned Standing
Counsel for Union of India.
Shri S.C. Mishra, learned Standing
Counsel for the State.
Date of Hearing and Judgment : 27.07.2022
Shri Sanjaya Kumar Mishra, J.
(Upon hearing of learned counsel for the parties, the Court has passed the following judgment):
1. In this writ petition, the petitioner has prayed for the following reliefs:
"i. Issue a writ, order or direction in the nature of Mandamus directing the respondent no. 2 to decide the passport reissue application of the petitioner dated 20.01.2022 no. BL1076035510622 (Annexure No. 5) in time bound manner preferably within one week.
ii. Issue a writ, order or direction in the nature of Mandamus directing the respondent no. 1 and 2 to reissue the already valid passport of the petitioner no. L8173229 with changed address as per application dated 20.01.2022."2
2. Shri Rakesh Thapliyal, learned Assistant Solicitor General of India has raised two preliminary objections; first objection is regarding the jurisdiction of this Court to entertain the writ petition and the second, is regarding relief that is to be granted to the petitioner.
3. It is not disputed that petitioner is a passport holder. He has applied for re-issue of the passport on the ground of change in address of residence as he was earlier residing in Haryana and at present, he is residing in Bajpur, District Udham Singh Nagar.
4. Learned counsel for the petitioner would submit that by virtue of a press release issued by the Ministry of External Affairs dated 26.06.2018 at New Delhi, a new scheme is launched whereby an applicant can apply for passport anywhere in India. The petitioner, therefore, has approached the Regional Passport Office, Bareilly instead of Dehradun because Bareilly is closer to his residence than Dehradun. The application for reissue of the passport is still pending. Learned counsel for the petitioner submits that respondent no. 2 is not taking any decision on the application of the petitioner.
5. However, learned Assistant Solicitor General of India would submit that after receipt of application of the petitioner for reissue of the passport, the Regional Passport Officer called a report from the concerned police station. On 03.02.2022, he received adverse police verification report on the ground that three criminal cases are pending against the petitioner in Police Station - Kelakhera, District Udham Singh Nagar and because of the pendency of such criminal cases adverse police verification report was submitted, therefore, passport could not be re-issued 3 to the petitioner and a show cause notice no. SCN/319430132/ 22 dated 26.02.2022 was issued to the petitioner followed by a reminder dated 07.04.2022 for submitting a clarification in respect of aforesaid FIRs but no response was received from the petitioner.
6. A perusal of the report reveals that respondent no. 2 has not received any response of the show cause notice from the petitioner.
7. Be that as it may, on interpretation of Section 20 of the Code of Civil Procedure, 1908, this Court is of the opinion that this Court does have jurisdiction over in this case, as part of the cause of action arose within the jurisdiction of this Court.
8. As far as re-issue of the passport is concerned, the Regional Passport Officer cannot deny re-issue of the passport only on the ground that FIRs have been lodged against the petitioner. In this connection office memorandum no. VI/401/1/5/2019 issued by Government of India, Ministry of External Affairs dated 10.10.2019 is relevant. Paragraph 5 of the said Memorandum reads as under:
"05. In view of the above, the following instructions may be adopted while processing the passport applications in respect of those applicants who may have criminal proceedings pending before a criminal court in India:
(i) The provisions of GSR 570 (E) may be strictly applied in all cases. GSR 570 (E) is a statutory notification and hence, forms part of the Rules. It is to be noted that as per Section 5 (2) of the Passports Act, 1967, the passport authority shall be order in writing 4 take a decision whether to issue or refuse a passport, after making such inquiry, if any, as it may consider necessary. Moreover, Section 7 of the Passports Act, provides that a passport or travel document may be issued for a shorter period than the prescribed period if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period. Rule 12 of the Passport Rules, 1980 only states that an ordinary passport shall be in force for a period of 10 years which implies that an ordinary passport cannot be issued beyond a period of 10 years.
(ii) Whenever an applicant is submitting a 'No Objection Certificate' (NOC) from a Court of law in India, the applicant should be advised that undertaking as per GSR 570(E) should be complete in all respects and should mention all the pending criminal cases against the applicant. The undertaking will have a note clearly stating that if any false or incomplete information is submitted by an applicant, then his passport application is liable to be rejected.
(iii) Extant instructions clearly lay down that such applications should be processed on pre-Police Verification (PV) mode. "Pre-PV" would be mandatory in all cases of applications submitted with GSR 570(E) to ensure that the undertaking submitted by the applicant is properly matched with the criminal cases mentioned in the Police Verification Report (PVR).
Hence, such applications should not be accepted under Tatkaal nor such applications be moved to "post-PV"
5mode or "No-PV" mode without proper justification and approval to be recorded in writing.
(iv) If an undertaking is incomplete or misleading and the applicant is found to have suppressed details of other criminal cases against the applicant, a Show Cause Notice should be issued to the applicant and action initiated against that applicant as per provisions of Section 12 of the Passports Act, 1967. If information that an applicant has obtained a passport by making a false submission or by suppressing material facts comes to light after the passport has been issued, the passport may be impounded or revoked as per provision of Section 10 (3) (b) of the Passports Act, 1967 after following the due procedure.
(v) In case where the first police verification (PV) is 'Adverse', secondary police verification may be generated. While a secondary PV is generated, it should be accompanied by a detailed letter seeking clarification regarding the pending criminal cases against the applicant and the status of these cases. Apart from generating secondary PVR, the passport officers may, if considered necessary, call for discreet enquiry through the police authorities by sending the court order submitted by the applicant or even seek verification from other government agencies/departments, as the case may be.
(vi) In case where the secondary Police Verification is also 'Adverse', it may be examined whether the details brought out in the police report match the undertaking submitted by the applicant. It may be noted that mere filing of FIRs and cases under investigation 6 do not come under the purview of Section 6 (2) (f) and that criminal proceedings would only be considered pending against an applicant if a case has been registered before any Court of law and the court has taken cognizance of the same.
(vii) If the details given in the police report and the undertaking submitted by the applicant are matching, then the 'No Objection Certificate' issued by a Court of law submitted by the applicant would take precedence over any 'Adverse' report submitted by the police. In such cases, the 'Adverse' report may be overruled with the written approval of the Passport Officer.
(viii) If the details given in the PVR and the undertaking submitted by the applicant are at variance, then a notice may be issued to the applicant calling for clarification and advising the applicant to submit details of all pending criminal cases as well as to submit a revised No Objection Certificate (NOC).
(ix) If it is brought to the notice of the authority that an applicant has criminal proceedings arrayed against applicant before several courts of law, then the applicant may be advised to get NOC from all the concerned court
(s). Normally, the Court Order would make a mention of the cases pending against the applicant as well as the prayer made by the applicant. This may be examined along with the undertaking submitted by the applicant and complaints or other court orders, if any, that have been received against the applicant.
(x) It may noted that GSR 570(E) only exempts an applicant from the operation of Section 6 (2)(f) and 7 none of the other sub-sections of Section 6(2) of the Passports Act, 1967.
(xi) A revised undertaking under GSR 570(E) is attached at Annexure 'A'.
(xii) Passport Officers may issue an internal SOP along the above lines so that there is no confusion in handling of applications that would attract provisions of section 6(2) (f) of the Passports Act, 1967."
9. In case, petitioner is involved in criminal case(s), the application for re-issue of the passport should be considered in the light of directions given by the Ministry of External Affairs. In this case, clearly the same has not been done.
10. Be that as it may, since the application for re-issue of the passport of the petitioner has not been rejected yet, let petitioner appear before the Regional Passport Officer, Bareilly within ten days and produce a copy of reply to show cause notice, which he has already said to have been given to respondent no. 2 vide Annexure No. 8 to the writ petition. After receiving such reply to the show cause, the Regional Passport Officer shall take a decision on the application of re-issue of passport, strictly in accordance with law by following the guidelines issued by the Ministry of External Affairs, as mentioned above, within a period of thirty days from the date of production of certified copy of this order. If application for re-issue is rejected, then the Regional Passport Officer shall be duty bound and under the obligation to give specific reasons and shall also explain to the petitioner as to how, as per guidelines of the Ministry of External Affairs, if application for re-issue is allowed, it violates the said guidelines.
811. With such observations, the writ petition stands disposed of accordingly. Urgent certified copy of this judgment be issued to the learned counsel for the parties, as per Rules.
(Sanjaya Kumar Mishra, J) SKS