Allahabad High Court
Shashank Gupta vs Union Of India Through Its Secy. ... on 14 May, 2018
Equivalent citations: AIR 2018 ALLAHABAD 275, AIR 2018 ALLAHABAD 253, AIRONLINE 2018 ALL 5085, AIR 2018 ALL 253, (2018) 190 ALLINDCAS 884 (ALL), AIR 2018 ALL 275, 2018 (5) ALJ 562, (2018) 6 ADJ 813 (ALL), (2018) 130 ALL LR 168, (2018) 5 ALL WC 5156
Bench: Bala Krishna Narayana, Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 AFR Case :- WRIT - C No. - 16982 of 2018 Petitioner :- Shashank Gupta Respondent :- Union Of India Through Its Secy. Ministry Of External Affarirs And Anohter Counsel for Petitioner :- Ashish Kumar Dubey,Rajesh Chandra Dwivedi Counsel for Respondent :- A.S.G.I. Hon'ble Bala Krishna Narayana,J.
Hon'ble Rajiv Gupta,J.
(As Per Hon'ble Rajiv Gupta, J.) Shashank Gupta S/o Virendra Gupta, R/o B-5, Ground Floor, Sector-33, Noida has filed this writ petition assailing the validity of order dated 14.08.2017 passed by Regional Passport Officer, Regional Passport Office, Ghaziabad intimating that Passport bearing no.K0144741 issued on 31.10.2011 is impounded under Section 10(3)(e) of the Indian Passport Act, 1967.
Brief facts of the case are that the petitioner is a Software Professional and has to be on tour of various countries in connection with his professional work. He had applied for a passport by means of an application and the concerned Department, after making requisite inquiry, issued Passport bearing no. K0144741 on 31.10.2011. The said Passport is valid up to 31.10.2021.
It is further submitted by learned counsel for the petitioner that in the year 2015, there arose dispute between the neighbour and the petitioner over a petty matter of throwing garbage, which resulted in heated arguments at the spur of the moment. However, an FIR was lodged against the petitioner along with two others (Sweta Gupta and Virendra Kumar Gupta). The Police, without making proper investigation of the case, in a most hurried manner, submitted the charge-sheet against the petitioner and his two other family members under Sections 452, 323, 506, 504, 324 IPC. The said charge-sheet was challenged before this Hon'ble Court by filing an application under Section 482 CrPC No. 27065 of 2016, Smt. Sweta Gupta and 2 others Vs. State of U.P. and another. This Court, after hearing the matter and being satisfied that the dispute is between the neighbours and there are fair chances of reconciliation between the parties, referred the matter for consideration by the Mediation Center of this Court and stayed the further proceedings vide order dated 17.09.2016.
Learned counsel for the petitioner has further submitted that the parties have arrived at a compromise and that they have amicably settled the dispute and do not want to further pursue the criminal proceedings, the compromise has been filed before this Court. The petitioner received an order dated 14th August, 2017 intimating the impounding of his Passport bearing no. K0144741 stating therein "It has been decided to impound the passport bearing Passport No.K0144741, issued on dated 31.10.2011 to Shri/Smt./Kumari Shashank Gupta S/o, D/o, W/o, C/o Virendra Nath Gupta under Section 10(3) (e), "Criminal case is pending before the Court" of the Passports Act, 1967.
You are, therefore, requested to submit the Passport to this passport office with immediate effect, if not already done. You may also prefer appeal before the Joint Secretary (PSP) & CPO < MEA < New Delhi within 30 days of issue of this notice in case not satisfied with the above decision."
It is the aforesaid action of the Ministry of External Affairs, Regional Passport Office, Ghaziabad that has impelled the petitioner to be present before this Court by means of the present writ petition.
Heard Sri Ashish Kumar Dubey, learned counsel appearing for the petitioner, Sri Prakash Triapthi, learned Standing Counsel for Union of India/respondent nos. 1 and 2 and perused the record.
Learned counsel for the petitioner has submitted that under Section 10(3)(e) of the Indian Passport Act, 1967, the Passport Authority has been conferred with the authority to impound/revoke a passport or travel document but mere pendency of criminal case against the holder of a passport would not automatically confer absolute authority to impound his passport and in such a situation, the Passport Authority is obligated to decide while exercising his discretion as to whether pendency of such criminal case warrants impounding of the passport or not in the facts of the present case.
Learned counsel for the petitioner has further submitted that the Authority has exercised its discretion in a most mechanical manner without objectively ascertaining the fact that whatever dispute was there culminating in a criminal case, was an outcome of petty dispute between the neighbour over throwing of garbage and which, in the facts of the case, was referred for settlement through compromise and the same has been amicably settled between the parties and the parties do not want to further pursue the criminal proceedings, which has been filed in the petition pending before this Court for disposal.
Learned counsel for the petitioner has further submitted that in the backdrop of the aforesaid circumstances, the impugned order in question having civil consequences ought not to have been passed and as such, writ petition deserves to be allowed.
Sri Prakash Tripathi, representing the Union of India/respondent nos. 1 and 2, on the other hand, has submitted that once accepted position is that there is criminal case pending against the petitioner and there is no dearth of authority in the Passport Officer to direct impounding of the passport, then in such a situation, this Court, in exercise of its authority of judicial review, should not at all intervene in the matter.
Considering the rival submissions made by learned counsel for the parties, it would be useful to examine the provisions of the Passport Act, 1967 wherein section 10 confers power on the Passport Authority to pass orders for impounding/revocation of passports and travel documents. The grounds of impounding/revocation has been provided under Clause (a) to (h) of sub-section 3 of Section 10 of the Indian Passport Act, 1967. Sub-section (5) of Section 10 obligates the Passport Authority to give reasons for making such an order.
The relevant provisions that have been invoked in the present case are as follows:-
"(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document:-
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India (5) Where the passport authority makes an order varying or cancelling the endorsement on, or varying the conditions of, a passport or travel document under sub-section (1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy."
A bare perusal of the provisions quoted above would go to show that the Passport Authority under the Passports Act, 1967 has been conferred with the Authority to impound or caused to be impounded/revoked a passport or travel document if proceedings in respect of an offence have been committed by the holder of the passport or travel document are pending before a criminal Court in India. Sub-section 5 of Section 10 obligates the Passport Authority to record in writing a brief statement of reasons for making such an order.
Apex Court in the case of Menaka Gandhi Vs. Union of India 1978 (1) SCC 248 has taken the view that Sub-section 5 of Section 10 of the Passports Act, 1967 requires the Passport Authority impounding the passport to record reasons of making such order and the necessity of giving reasons has obviously been introduced in the sub-section so that it may act as a healthy check against abuse or misuse of power. If the reasons given are not relevant and there is no nexus between reasons and the ground on which the passport was impounded, it would be open to the holder of the passport to challenge the order of impounding in a Court of law and if the Court is satisfied that the reasons are extraneous or irrelevant, the Court would struck down the order.
Apex Court in the case of Suresh Nanda vs. CBI 2008 (3) SCC 674 has taken the view that impounding of passport entails civil consequences and in view of this, the Authorities are duty bound to give opportunity of hearing to the person concerned.
Undoubtedly, from the facts of the case, it is evident that the discretion is vested with the Passport Authority in terms of Section 10 of the Passports Act, 1967 but it is not at all mandatory on the passport authority to impound or caused to be impounded or revoke a passport or travel document if proceedings in respect of offence merely alleged to have been committed by the holder of the passport or travel document are pending before the Court in India.
Mere pendency of criminal case against the holder of passport would not automatically result in impounding of his passport and the mere fact that certain conditions specified in Section 10 (3) of the Act, on the basis of which a passport can be impounded, subsists in a given case cannot by itself result in impounding of passport automatically and once the Passport Authority, in his wisdom, chooses to exercise his discretion in the said direction as to whether on account of pendency of such criminal case, the passport in question should be impounded or not, then, at the said point of time, the Passport Officer should apply his mind looking into the nature of the criminal cases that have been lodged/initiated against the petitioner and further that if a passport is not impounded, then there are possibilities that the incumbent would not at all face the criminal case. Even if criminal case is pending against a person that by itself does not require passport authority to impound/revoke the passport in every given case. It is only in appropriate cases for adequate and cogent reasons such an order could be passed. While passing order of impounding/revocation of passport, merely by quoting the requirement mentioned in the section is clearly indicative of circumstance that order has been passed without there being any objective consideration of the subject matter.
It is further germane to point out here that in the present case, it is evident that a petty dispute between neighbours had illegally been dragged in criminal court and on proceedings being challenged, this court had referred the matter for settlement through Mediation and consequent thereto, parties have settled their dispute amicably and do not want to further pursue the criminal proceedings and the compromise has been filed before this Court pending for disposal.
Once such is the nature of a criminal case, then merely because the criminal case is pending, can the Passport Authority only on the said ground that the criminal case is pending proceed to impound the passport in question.
In the backdrop of the said case, particularly when the subject matter of a criminal proceedings is already being compromised between the parties, the Passport Authority will have to take objective consideration while proceeding to exercise his discretion whether pendency of such criminal case warrants impounding of passport or not keeping in view the conduct of the petitioner.
It is further germane to point out here that in the present case, the Passport Officer has proceeded to pass an order only on the premise that the criminal case is pending and at no point of time, reply dated 24.01.2018/01.02.2018 submitted by the petitioner that the dispute in question has already been amicably settled through compromise and is pending consideration before this Court has been considered by him. The outcome of the said case will certainly have a direct nexus affecting the decision of the Passport Authority in impounding his passport, which bears civil consequences. Moreover, Sub-section 5 of Section 10 casts a statutory obligation upon the Authority to record reasons for impounding the passport and as such, the impugned order dated 14.08.2017 cannot be sustained and is liable to be quashed.
With these observations, this writ petition is allowed and the order dated 14.08.2017 passed by the respondent no. 2 is hereby quashed. The Passport Officer may pass fresh order in view of the observations made herein above considering the facts of the case.
Order Date :- 14.5.2018 Nadim