Madras High Court
V.Sudalaikan vs The Regional Passport Officer on 18 January, 2019
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.01.2019
CORAM:
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P(MD)No.505 of 2019
V.Sudalaikan ... Petitioner
Vs.
The Regional Passport Officer,
Bharathi Ula Veethi,
Race Course Road,
Madurai – 625 002. ... Respondent
Prayer: Petition filed under Article 226 of the Constitution of India seeking
for issuance of a Writ of Mandamus, directing the respondent to issue
Passport to the petitioner, by processing the File No.MD2071606608118,
dated 30.10.2018, by considering the petitioner's representation, dated
27.12.2018.
For Petitioner : Mr.S.Vinayak
For Respondent : Mr.V.Kathirvelu
Assistant Solicitor General
for Mr.K.Prabhu
Central Government Standing Counsel
ORDER
This Writ Petition has been filed seeking for issuance of a Writ of Mandamus, directing the respondent to issue Passport to the petitioner, by processing the File No.MD2071606608118, dated 30.10.2018, by considering the petitioner's representation, dated 27.12.2018. http://www.judis.nic.in 2
2.The petitioner submits that the respondent herein had issued a Passport vide No.G8084364, for a period of 10 years i.e., 27.05.2008 to 26.05.2018. Since his Passport validity period has been expired on 26.05.2018, the petitioner had applied for re-issuance of Passport, by renewing the same, through online on 28.10.2018 and paid a sum of Rs.1,500/-. The respondent herein had entertained his application in File No.MD2071606608118 and given an appointment dated 30.10.2018 to appear before them along with necessary documents. As per the instructions given by the respondent, the petitioner has appeared before them and produced all the documents in support of his claim for renewal of passport.
3.The petitioner further submits that after receipt of the documents, the respondent assured the petitioner that the Passport will be dispatched through Post. While so, all of a sudden, the respondent had issued a letter dated 29.11.2018 and sought explanation from the petitioner, as if he has involved in criminal cases. The petitioner appeared on 21.12.2018 before the respondent in person and informed that he never involved in any criminal case and no criminal proceedings are pending against him in any Court of law. He sent a written explanation dated 27.12.2018 through registered post also. But, the respondent orally informed the petitioner that the FIR is pending against him and therefore, he is not entitled for renewal of Passport. http://www.judis.nic.in 3
4.The petitioner further submits that the respondent had received information from the Radhapuram Police Station, Tirunelveli District and on relying the same, the respondent came to the conclusion that the FIR is pending against him in Crime No.160 of 2016. The said FIR, according to the petitioner, is a false one and that mere registration of the FIR is not a bar for renewal of Passport. The FIR is only a complainant's alleged version and does not mean that a criminal case is pending against him before the Court of law.
5.The petitioner also submits that he also made a copy application before the Judicial Magistrate Court, Valliyoor, to know whether charge sheet has been filed in Crime No.160 of 2016 or not. The learned Judicial Magistrate, Valliyoor, has informed him that the charge sheet has not been filed in the above said crime number. As per Section 6 r/w. Section 10 of the Passport Act, mere pendency of FIR is not a ground to refuse Passport. This Court in various decisions has held that pendency of FIR cannot be a legal basis for denial of Passport. Hence, the petitioner has approached this Court by way of filing the present Writ Petition.
6.The respondent has filed counter affidavit stating that the petitioner's Passport application was processed for issuance of Passport on pre-police verification reports basis. While processing the petitioner's application, an adverse police report was submitted by the Superintendent http://www.judis.nic.in 4 of Police, Tirunelveli District, mentioning as follows:-
1.Radhapuram P.S. Cr.No.149 of 2014, u/s.465, 468, 471, 420, 506(i) IPC – treated as mistake of fact.
2.Radhapuram P.S. Cr.No.127 of 2018, u/s.342, 506(ii), 454 and 380 IPC – treated as mistake of fact.
3.Valliyoor P.S. Cr.No.411 of 2018 u/s.147, 294(b), 323 and 506(ii) IPC – treated as mistake of fact.
4.Valliyoor P.S. Cr.No.413 of 2018 u/s.294(b), 323, 324 and 506(ii) IPC @ 147, 148, 294(b), 323, 324, 307 and 506(ii) IPC – under investigation.
7.The respondent has further stated that in the above said cases, Crime Nos.149 of 2014, 127 of 2018 and 411 of 2018 were closed as 'mistake of fact' and the case in Crime No.413 of 2018 is pending against the petitioner. The petitioner had suppressed the material information of the above criminal case pending against him in his Passport application and applied for Passport. In view of submission of adverse police report by the Superintendent of Police, Tirunelveli District, to the petitioner's Passport application, the action of the petitioner attracts Section 6(2)(f) of the Indian Passports Act, 1967. Hence, a show cause notice dated 29.11.2018 was issued to him seeking his explanation regarding the circumstances under which he had suppressed the material information of criminal case pending against him in his passport application.
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8.The respondent has also stated that the case in Crime No.160 of 2016 on the file of Radhapuram Police Station disclosed by the petitioner in this Writ Petition has not been mentioned in the police verification report submitted to the petitioner's Passport application. Hence, in addition to Crime No.413 of 2018 on the file of Valliyoor Police Station, the case in Crime No.160 of 2016 is also pending against him. The petitioner has not submitted any documentary evidence to prove that the criminal cases registered against him are only in FIR stage. Hence, the matter has been referred to the Superintendent of Police, Tirunelveli District, for submission of their report on the factual status of Criminal Cases registered against the petitioner before the Criminal Court of law. On receipt of the report from the Superintendent of Police, Tirunelveli District, on the factual status of the criminal cases reported to be pending against the petitioner, the petitioner's application for issuance of Passport will be processed in accordance with the provisions of the Indian Passports Act, 1967 and therefore, he prayed for dismissal of the Writ Petition.
9.The learned Assistant Solicitor General has produced a Gazette Notification dated 25.08.1993, wherein it has been stated as follows:-
''GOVERNMENT OF INDIA MINISTRY OF EXTERNAL AFFAIRS NOTIFICATION New Delhi, the 25th August, 1993 G.S.R. 570(E).- In exercise of the powers conferred by clause http://www.judis.nic.in 6
(a) of Section 22 of the Passports Act, 1967 (15 of 1967) and in supersession of the notification of the Government of India in the Ministry of External Affairs No.G.S.R.298(E), dated the 14th April, 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of Clause (f) of sub-section (2) of Section 6 of the said Act, subject to the following conditions, namely:-
(a) the passport to be issued to every such citizen shall be issued--
(i) for the period specified in order of the court referred to above, if the court specifies a period for which the passport has to be issued; or
(ii) if no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period one year,
(iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period validity of the passport, the passport shall be issued for one year; or
(iv) if such order gives permission to travel abroad for a period exceeding one year, and does not specify the validity of the passport, then the passport shall be issued for the period of travel abroad specified in the order.
(b) any passport issued in terms of (a)(ii) and (a)(iii) above can be further renewed for one year at a time, provided http://www.judis.nic.in the applicant has not travelled abroad for the period sanctioned 7 by the court; and provided further that, in the meantime, the order of the court is not cancelled or modified;
(c) any passport issued in terms of (a)(i) above can be further renewed only on the basis of a fresh court order specifying a further period of validity of the passport or specifying a period for travel abroad;
(d) the said citizen shall give an undertaking in writing to the passport issuing authority that he shall, if required by the court concerned, appear before it at any time during the continuance in force of the passport so issued.
[No.VI/401/37/79] L.K.PONAPPA, Jt. Secy. (CPV)''
10.The learned counsel for the petitioner submitted that the said notification is applicable only to the persons, against whom, the proceedings before the Criminal Court are pending and the same is not applicable to the petitioner. The learned counsel for the petitioner submitted that earlier this Court, in various decisions, has passed favourable orders allowing the Department to issue Passports even the FIR is pending against such persons.
11.In support of his submission, the learned counsel for the petitioner relied on the judgment passed by a Division Bench of this Court in W.A.(MD)No.301 of 2018, dated 27.03.2018, wherein at Paragraphs 8 http://www.judis.nic.in and 9, it has been held as follows:-
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''8.A Single Bench of this Court (M.SATHYANARAYANAN, J.) has considered the similar issue and after placing reliance upon the following judgments:
(i)1998 SCC Online Cal 181 : [1998] 2 Cal LT 415 [Shree Pradeed Kundalia V. Union of India and others];
(ii)2004 Crl.L.J. 1281 [Abhijit Sen Vs. Superintendent [Administration], Regional Passport Officer and others];
(iii)2014 SCC Online Mad 2900 [WP[MD]No.8343/2014 etc., batch dated 27.06.2014] [W.Jaihar William and others Vs. The State of Tamil Nadu rep. by its Secretary to Government, Home Department, Fort St George, Chennai 600 009];
(iv)AIR 1962 Cal 135 [A.K.Roy V. State of West Bengal];
(v)AIR 1957 Cal 379 [Parulbala Sen Gupta Vs. State]; and
(vi)AIR 1967 SC 1836 []Satwant Singh Sawhney v.
D.Ramarathnam, Assistant Passport Officer & Others]; has concluded that mere pendency of the criminal proceedings cannot be construed as pendency of the criminal proceedings. The decisions relied on for reaching the said conclusion in the above cited decision, would also disclose that unless cognizance is taken by the concerned Magistrate, it does not amount to pendency of the criminal proceedings. Admittedly, in the case on hand, the case is in FIR stage and even for the sake of arguments, subsequently, the charge sheet has been filed, as on the date of submission of the application for passport, only FIR is pending and it cannot be construed as pendency of a criminal and it cannot be said that the petitioner has suppressed the material fact of pendency of the criminal case.
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9.In the result, the writ appeal is disposed of and the respondent is directed to process the passport application No.MD2060772696117, submitted by the petitioner in accordance with law and communicate the decision taken to the petitioner with regard to the issuance of passport within a period of eight weeks from the date of receipt of a copy of this order. However, in the facts and circumstances of the case, there shall be no order as to costs.''
12.Similarly, this Court, in W.Jaihar William Vs. State of Tamil Nadu, Rep. by its Secretary to Government, Home Department, Fort. St. George, Chennai and others reported in 2014 (2) CWC 684, has passed an order in favour of the petitioners therein to consider their applications regarding issuance of Passports to them.
13.In view of the above, without expressing any opinion on the merits of the case, this Court directs the petitioner to produce all the necessary documents and co-operate with the authorities in the enquiry being conducted. The respondent shall consider the representation of the petitioner, dated 27.12.2018 and pass orders after giving an opportunity to the petitioner and pass orders in accordance with law, within a period of four weeks from the date of receipt of a copy of this order.
14.With the above directions, this Writ Petition is disposed of. No costs.
Index : Yes / No 18.01.2019
Internet : Yes / No
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http://www.judis.nic.in
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V.BHAVANI SUBBAROYAN, J.
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To
The Regional Passport Officer,
Bharathi Ula Veethi,
Race Course Road,
Madurai – 625 002.
W.P.(MD)No.505 of 2019
18.01.2019
http://www.judis.nic.in