Madras High Court
S.Palaniyappan vs The Immigration Officer on 29 September, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)No.14808 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.14808 of 2023
and
WMP(MD)No.12501 of 2023
S.Palaniyappan ... Petitioner
Vs
1.The Immigration Officer,
Bureau of Immigration,
(MHA) Government of India,
Trichy International Airport,
Trichy – 7.
2.The Regional Passport Officer,
Madurai Region,
Bharathi Ula Road,
Madurai.
3.The Inspector of Police,
Aravayal Police Station,
Sivagangai District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorarified Mandamus calling for the records
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https://www.mhc.tn.gov.in/judis
WP(MD)No.14808 of 2023
relating to the first respondent's show cause notice in Sl.No.02/IMP/BOI-
TAP/2017(08)-102, dated 04.07.2017 relating the second respondent
impounding the petitioner's passport in No.237937, quash the same and
consequently, directing the second respondent to release the petitioner's
passport.
For Petitioner : Mr.P.Muthusamy
For Respondents : Mr.S.Pon Senthil Kumar
Central Government Standing Counsel
for R.1, R.2
: Mr.P.Kottaichamy
Government Advocate (Crl Side)
for R.3
*****
ORDER
The petitioner has been issued with passport in Passport No.N0237937. The grievance of the petitioner is that the first respondent has impounded his passport and directed him to approach the second respondent, citing the pendency of a criminal case registered against this petitioner. 2/8 https://www.mhc.tn.gov.in/judis WP(MD)No.14808 of 2023
2.The learned Counsel for the petitioner submits that the petitioner has been arrayed as an accused in CC.No.265 of 2015 for the offence u/s.294(b), 324, 506(i) IPC and the case has also been closed on payment of fine amount. Even then, the respondents have impound the petitioner's passport. Hence this writ petition is filed.
3.The learned Government Advocate for the third respondent admits that the case in CC.No.265 of 2015 has been closed. He further submits that yet another case in Crime No.119 of 2021 is pending as against the petitioner on the file of the third respondent Police for the offence u/s.379 IPC and Section 21(4) of Mines and Minerals (Development & Regulation) Act and the same is under investigation.
4.From the above, it is clear that as on date, only one FIR is pending as against the petitioner. Pendency of an FIR, by itself, cannot be a ground to refuse the passport. The Passport Authority can refuse the passport and any travel documents under Section 6 of the Passport Act, 1967. Section 6(2)(F) of the Act would be relevant and the same is extracted as under:- 3/8
https://www.mhc.tn.gov.in/judis WP(MD)No.14808 of 2023 “6.Refusal of passports, travel documents, etc- ...
(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 -
... (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a Criminal Court in India.”
5.The above provision enables the Passport Authority to refuse the passport or travel document to an applicant on the ground that proceedings in respect of an offence alleged to have been committed by the applicant is pending before a Criminal Court. Registration of an FIR on the police files, based on a complaint, cannot be construed as a proceedings pending before the Criminal Court.
6.The role of the Court pending the investigation has been discussed by various Courts. In W.Jaihar William v. State of Tamil Nadu [2014 (2) CWC 4/8 https://www.mhc.tn.gov.in/judis WP(MD)No.14808 of 2023 684], this Court has held as follows:-
“8. ... It is well settled legal principle that mere pendency of FIR cannot be construed as pendency of criminal proceedings in respect of the offences alleged to have been committed by the applicant before the Criminal Court. Only after the Court takes cognizance of the offence alleged to have been committed by the applicant, as stipulated under Section 190 of Cr.PC., it can be construed as 'proceedings pending before the Court'”
7.A Division Bench of this Court in Arumugam v. Regional Passport Officer, Madurai [W.A(MD)No.301 of 2018, dated 27.03.2018], has held as follows:-
“8. ... 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 case and it cannot be said that 5/8 https://www.mhc.tn.gov.in/judis WP(MD)No.14808 of 2023 the petitioner has suppressed the material fact of pendency of the criminal case.”
8.In fact, the Ministry of External Affairs, Government of India, has issued a Circular dated 10.10.2019, wherein, the following instruction was issued:-
“5. 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:
...
(vi) ... It may be noted that mere filing of FIRs and cases under investigation 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.”
9.Ordinarily, the duration of a passport as per Rule 12 of the Passport Rules is for a period of 10 years. In the event if the applicant is facing any criminal proceedings, the passport may be issued by restricting the period. 6/8 https://www.mhc.tn.gov.in/judis WP(MD)No.14808 of 2023
10.In a similar circumstance, this Court in Suriya Prakash Vs. The Regional Passport Officer, Madurai and Ors, reported in MANU/TN/1394/2017 considering the settled legal position has allowed the writ petition, which was filed challenging the order of impounding the passport and the relevant portion is extracted hereunder:
“ In view of the above circumstances, the Writ Petition is allowed and the impugned order, dated 8.6.2016 passed in Reference No. IMP/304107309/16 stands quashed and the first respondent is consequently directed to return the Petitioner's passport bearing Registration No. M8653181, immediately. Consequently, connected Miscellaneous Petitions are closed. No costs.”
11.In view of the foregoing discussions and the decisions referred supra, this writ petition is allowed. The respondents 1 & 2 are directed to return the Passport No.N0237937 of the petitioner immediately. No costs. Consequently, connected miscellaneous petition is closed.
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gk To
1.The Immigration Officer, Bureau of Immigration, (MHA) Government of India, Trichy International Airport, Trichy – 7.
2.The Regional Passport Officer, Madurai Region, Bharathi Ula Road, Madurai.
3.The Inspector of Police, Aravayal Police Station, Sivagangai District.
WP(MD)No.14808 of 2023
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