Rajasthan High Court - Jodhpur
Rehman Khan vs State Of Rajasthan (2025:Rj-Jd:7913) on 7 February, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:7913]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1279/2025
Rehman Khan S/o Shri Ali Mohammed, Aged About 42 Years, R/o
Ward No. 9, Pithisar, P.s. Ratannagar Dist. Churu
----Petitioner
Versus
1. State Of Rajasthan, Through Director General Of Police,
Headquarter, Raj. Jaipur
2. Superintendent Of Police, Hanumangarh
3. Station House Officer, P.s. Bhadra Dist. Hanumangarh
4. Farida Banu W/o Rahman Khan, R/o Bhadra Tehsil
Bhadra, Dist. Hanumangarh
----Respondents
For Petitioner(s) : Mr. R.S. Choudhary
For Respondent(s) : Mr. Vikram Rajpurohit, Dy.G.A. with
Mr. Ravindra
HON'BLE MR. JUSTICE FARJAND ALI
Order 07/02/2025
1. By way of filing the instant misc. petition, the petitioner is seeking direction of this Court to permit him to go abroad Kuwait for earning his livelihood.
2. The petitioner has moved an application before learned Magistrate which came to be decided on 04.02.2025. The petitioner was married to one Smt. Farida Bano in the year 2011. Since then, he was doing labouring job in Kuwait. He frequently used to visit the country and to take care of his wife and other family members. Owing to some discord or may be of some acrimony between them, she lodged an FIR No.368/2024 on (Downloaded on 07/02/2025 at 11:54:12 PM) [2025:RJ-JD:7913] (2 of 8) [CRLMP-1279/2025] 27.07.2024 for offence under Sections 498-A, 406, 323, 494, 143 of IPC and Sections 3 and 4 of Muslim Women (Protection of Rights on Marriage) Act on March, 2019. He visited the country on 12.08.2024 to settle down the family dispute but could not get success. In a subsequent development, his wife moved an application for issuance of look out circular and in pursuance thereof, he was arrested on 09.01.2025. He was bailed out in preventive actions so also in relation to the offence relatable to the FIR No.368/2024. It is contended that he would lose job in Kuwait which he was pursuing since a long, the only source of his livelihood. It is stated that the criminal prosecution is on its nascent stage and it would surely take a long time to reach on a legitimate conclusion. During the pendency and conclusion of the trial if he would not be allowed to go outside the country, then he will lose his job. It is contended that right to go abroad and right to earn for livelihood is a fundamental right.
3. Heard the learned counsel for the parties and gone through the niceties of the matter.
4. This Court has dealt with the similar issue in the case of Balkaran Singh v. State of Rajasthan [S.B. Criminal Misc(Pet.) No. 7824/2022] dated 21.11.2022. The relevant paragraphs of the order are being reproduced herein below:-
"It is significant to note here that the Passports Act, 1967 does not confer absolute power upon a citizen to obtain passport. Section 6(1) & (2) of the Act prescribe certain conditions/eventualities when the passport authority is required to turn down request to make an endorsement or issue passport which includes a condition when an applicant (Downloaded on 07/02/2025 at 11:54:12 PM) [2025:RJ-JD:7913] (3 of 8) [CRLMP-1279/2025] is an accused in a criminal case. Relevant extract of section 6(2) is reproduced hereinbelow:-
"(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:--
(a) that the applicant is not a citizen of India;
(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India;
(c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India;
(d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;
(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;
(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;
(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;
(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest."
To diminish the rigour of sub-section (2)(f) of section 6, the Central Government has issued a notification dated 28.06.1993 which enables the passport authority to issue passport even in the case of a person covered by clause (f) of sub-section (2) of section 6 of the Act. The notification dated 28.06.1993 is reproduced as under in its entirety:-
"GSR 570(E)- In exercise of the powers conferred by clause (a) of Section 22 of the Passports Act, 1967 (15 of 1967) and in supersession of the notification of the (Downloaded on 07/02/2025 at 11:54:12 PM) [2025:RJ-JD:7913] (4 of 8) [CRLMP-1279/2025] Government of India in the Ministry of External Affairs No. GSR 298(E) dated the 14" April 1976, the Central Government, being of the opinion that it is necessary ni 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 of 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;
(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 the applicant has not travelled abroad for the period sanctioned 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 afresh court order specifying a further period of validity of the passport or specifying a period for travel abroad;
(d) the said citizen shall given 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."
The aforementioned notification provides that upon production of an order from the Court, an application for grant of passport shall be considered. In case the order of the Court does not disclose the period for which the passport is to be issued, then, the passport authority will (Downloaded on 07/02/2025 at 11:54:12 PM) [2025:RJ-JD:7913] (5 of 8) [CRLMP-1279/2025] issue the passport for a period of one year only or as the case may be.
An accused desirous of seeking permission or order of getting exemption from rigour of clause (f) of section 6(2) of the Act in terms of the notification dated 28.06.1993 may or may not specify the period of stay and place of visit, but in an appropriate case, Court can still consider his request and pass an order in this regard. Court's duty in dealing with such 'application' is to see the nature of offence and the necessity of travel. An order in terms of the notification dated 28.06.1993 cannot be passed as a matter of course/or in routine.
Notification dated 28.06.1993 requires the Court to grant permission to travel abroad and on the basis of such order, the passport is required to be issued. If such order does not specify the period of travel, passport can be issued for 1 year. Petitioner has stated in his application that his children reside in Australia and Canad and he is supposed to visit them for social gatherings and family get togethers. True it is that he has not given specific date or period of travel but the trial Court should have passed order of issuing passport. Passing of an order in terms of the Notification dated 28.06.1993 is slightly different than grant of permission to travel abroad.
In considered opinion of this Court the trial Court has therefore, erred in rejecting petitioner's application for issuing passport, which was in essence an application for order in terms of notification dated 28.06.1993. The order of the trial Court is thus, liable to be set aside and thus this Court persuaded to quash the same.
It is noteworthy that the petitioner is of 72 years old man and the pendency of a criminal case is not an impediment for the court for issuance of passport in these circumstances, the passport authority should not refuse to issue passport to the petitioner in the face of sub-section
(e) of section 6 of the Passports Act. Clause (e) provides for refusal of passport where a person has been sentenced with imprisonment for a period not below two years within the five years preceding his application for passport under section 5 of the Passports Act. The petitioner has not been sentenced, hence he has not acquired any disqualification.
In light of the discussion made hereinabove, the instant petition is disposed of with a liberty to the petitioner to make an application afresh before the competent authority, following the procedure prescribed under section 5 of the Passports Act. If the petitioner prefers such an application, the passport authority shall consider the same in light of the relevant provisions of Passports Act as well as (Downloaded on 07/02/2025 at 11:54:12 PM) [2025:RJ-JD:7913] (6 of 8) [CRLMP-1279/2025] of the instant order without being influenced by the order passed by the trial Court on 13.07.2022.
The present petition is disposed of accordingly. The stay application also stands disposed of."
5. The similar issue has been elaborately discussed by the Coordinate bench, Jaipur in the case of Neeraj Saxena v. Rajasthan Electronics and Instruments Ltd. [S.B. Civil Writ Petition No. 16380/2024] dated 23.10.2024 For ready reference, the relevant paragraphs of the order are being reproduced herein below:-
10. Hon'ble Apex Court in the case of Smt. Maneka Gandhi Vs. Union of India, reported in AIR 1978 SC 597, has held that the expression "personal liberty"
under Article 21 of the Constitution of India has a wider amplitude which includes right to go abroad. A person cannot be deprived to this right except in accordance with the procedure prescribed by the law.
11. Similarly in the case of Satish Chandra Verma (supra), the Hon'ble Supreme Court has held as under:-
"The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage; family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right."
13. Even the Supreme Court of the United States in the case of Kent v. Dulles, reported in 357 US 116 1958, decided on 16.06.1958, has held as under:-
"(i) Freedom to go abroad has much social value and represents the basic human right of great significance.
(ii) Right to travel is a part of "liberty" of which a citizen cannot be deprived without due process of law."(Downloaded on 07/02/2025 at 11:54:12 PM)
[2025:RJ-JD:7913] (7 of 8) [CRLMP-1279/2025]
6. In this view of the matter, the Criminal Misc. Petition deserves to be allowed. The order dated 04.02.2025 passed by the learned Additional Chief Judicial Magistrate, Bhadra District Hanumangarh is set aside. The petitioner is permitted to go to Kuwait for a limited period i.e. for six months after his immigration check out so that he may not lose his job which he was doing since the year 2011 to earn his livelihood. The pendency of criminal case shall not be taken as an impediment against him for issuance of passport and obtaining a visa to visit Kuwait provided he furnishes a personal bond in the sum of Rs.10,00,000 as well as two surety bonds each of Rs.5,00,000/- of his father and mother residing here. He shall also furnish an undertaking to the effect that if any of the condition is contravened, his personal bond and amount of sureties so furnished shall be forfeited and amenable to recovery which shall thereafter be given to his wife. It is further made clear that his foreign visit shall not exceed more than six months from his immigration. After returning back, he shall join the court proceedings and during his absence, his counsel shall represent him in the trial Court.
7. Looking to the constraint of time and considering the urgency of the matter as mentioned by the learned counsel for the petitioner, that failure to travel to Kuwait within three days would result in the petitioner's termination from employment, it is directed that a copy of this order shall be presented before the concerned SP/DSP/SHO. Additionally, all requisite documents, including the surety bond and undertaking, shall be produced before the said officer, who shall ensure their safe custody and (Downloaded on 07/02/2025 at 11:54:12 PM) [2025:RJ-JD:7913] (8 of 8) [CRLMP-1279/2025] submit them before the trial Court after making attestation upon its reopening. If he furnishes all the required documents, including the surety bond and undertaking, his LOC shall be deemed canceled.
8. Needless to say, the LOC issued shall not hinder his travel Kuwait or his return to India.
9. In this view of the matter, the instant petition is allowed.
10. Stay petition stands disposed of.
(FARJAND ALI),J 1-divya/-
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