Orissa High Court
Ballav Kr @ Sriballav Kar vs Govt. Of India And on 5 August, 2019
Equivalent citations: AIR 2020 (NOC) 161 (ORI), AIRONLINE 2019 ORI 220, (2019) 202 ALLINDCAS 785, (2019) 2 ORISSA LR 536, (2019) 75 OCR 747
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No.3426 of 2018
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with G.R. Case No.320 of 2004
pending on the file of learned J.M.F.C. (P), Kujang.
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Ballav Kr @ Sriballav Kar ......... Petitioner
-Versus-
Govt. of India and
another ......... Opp. parties
For Petitioner: - Mr. Ramani Kanta Pattnaik
B.C. Parija, R.R. Rout,
M. Routray, P. Mallik
For Opp. Party no.1: - Mr. Anup Kumar Bose
Asst. Solicitor General
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 05.08.2019
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S. K. Sahoo, J. In this application under section 482 of Cr.P.C., the
petitioner Ballav Kar @ Sriballav Kar has challenged the
impugned order dated 20.12.2018 of the learned J.M.F.C.,
Jagatsinghpur in G.R. Case No.320 of 2004 in rejecting the
petition filed by the petitioner for issuance of no objection
certificate in order to obtain the passport in his favour to go
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abroad i.e. Geneva. While rejecting the petition, the Court has
observed that this is a year old case of 2004 and six witnesses
out of fifteen charge sheeted witnesses have already been
examined and if the petition is allowed, the petitioner may
abscond to foreign land or he may not be available in person or
his presence may not be procured promptly during vital stages of
the criminal proceedings such as accused statement and
pronouncement of judgment. It is further mentioned that the
particular time limit during which the petitioner would visit
Geneva, the purpose and urgency of visit to the foreign land, the
exact place of stay, the name of the course of study and the
duration of study that the petitioner's son is pursuing at Geneva
have not been furnished. The said case arises out of Paradeep
P.S. Case No.163 of 2004.
Learned counsel for the petitioner submitted that the
case was instituted in the year 2004 and the petitioner is facing
trial for commission of offences under sections 419, 420, 468,
471, 109 read with section 34 of the Indian Penal Code. The
allegation against the petitioner and other co-accused persons is
that they committed fraud and cheating of compensation of
whopping money to the tune of Rs.6,57,040.00 disbursed by the
Government in land acquisition case. It is contended that there is
inordinate delay in disposal of the trial of the case and as
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reflected in the order dated 20.12.2018, only six witnesses have
been examined out of fifteen charge sheeted witnesses till the
impugned order was passed and thereafter, the case has
suffered number of adjournments but no further witness has
been examined. He has filed the certified copy of the up-to-date
order sheet which is taken on record. Relying on the decision of
this Court in the case of Arjuna Charan Das -Vrs.- State of
Orissa reported in 2017 (Vol.II) Orissa Law Reviews 13, it
is contended that the impugned order should be set aside and
necessary permission and no objection certificate is to be
granted to the petitioner so that it can be produced before the
passport authorities.
Learned counsel for the petitioner further contended
that in view of the provisions under section 6(2)(f) of the
Passports Act, 1967, the passport authority shall refuse to issue
passport, inter alia, if any proceeding in respect of an offence
alleged to have been committed by the applicant is pending
before the criminal Court in India. The Passport Application Form
which was issued by the Government of India, Ministry of
External Affairs as per form No. EA (P)-13 indicates in Column
No.8 that the applicant has to indicate if he was ever charged
with criminal proceedings or any arrest warrant/summon is
pending before a Court in India and if the answer is 'yes', then
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the applicant will fill in Column No.7.1 of the Supplementary
Form which indicates that if there are any criminal
proceedings/warrant pending against the applicant then written
permission from the Court is to be attached to depart from India.
Mr. Anup Kumar Bose, learned Assistant Solicitor
General appearing for Union of India produced the notification of
the Government of India, Ministry of External Affairs, New Delhi
dated 25.08.1993 wherein it is indicated that 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 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, exempted 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,
from the operation of the provisions of Clause (f) of sub-section
(2) of section 6 of the said Act, if they produce orders from
concerned Court permitting them to depart from India subject to
certain conditions which are as follows:-
(a) the passport to be issued to every such citizen shall be
issued:-
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(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 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 a fresh Court order specifying a
further period of validity of the passport or specifying a period
for travel abroad;
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(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.
Thus in view of the provisions of the Passports Act,
1967 and the contents of the application forms for issuance of
the passport, notification issued by the Government of India,
Ministry of External Affairs, New Delhi and Passport Manual,
2010, it is clear that if any criminal proceeding is pending
against the applicant then he has to produce the written
permission from the concerned Court to depart from India.
Therefore, it is apparent that if the petitioner applies for issuance
of the passport then the passport issuing authorities are to follow
the procedure laid down under the Passports Act, 1967 and in
that event as per the provision under column no.7.1 of the
Supplementary Form, permission of the Court would be
necessary which is to be attached with the passport application
form. It is obvious that without the written permission from the
Court, the passport authority shall refuse to issue the passport
In the case of Deepak Dwarkasingh Chhabria
-Vrs.- Union of India reported in AIR 1997 Bombay 181, it
was observed as under:-
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"10. In view of the aforesaid notifications by the
Central Government, it is clear that the citizens
against whom criminal cases are pending are
made exempt from the operation of
Section 6(2)(f) provided they produce orders
from the concerned Court permitting them to
travel abroad subject to the terms and
conditions mentioned in the notifications. In
other words, an application of passport is not
liable to be refused on the ground of pendency
of criminal case if the applicant obtains
permission from the concerned Criminal Court
for travelling outside India. The passport
authority, therefore, cannot reject the
application for passport mechanically on the
ground of pendency of criminal case against the
application. It will be the duty of the passport
authority to bring the relevant notification to the
notice of the appellant to apply to the concerned
Criminal Court, for permission to travel abroad.
If the applicant obtains such permission from the
Criminal Court where his case is pending, the
passport authority will be duty bound to issue
the passport in terms of the order of the
Criminal Court subject to the conditions of the
notification."
In the case of Dhiren Baxi -Vrs.- Regional
Passport Officer, Ahmedabad reported in AIR 2003 Gujarat
108, it was observed as under:-
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"10. Considering the aforesaid notification issued
by the Central Government, as well as
considering the judgment of the Bombay High
Court, in my view, this petition is required to be
allowed by giving opportunity to the petitioner to
approach the concerned Magistrate with an
appropriate application for permitting him to go
abroad for a particular time limit. If the
concerned Magistrate permits the petitioner to
go abroad for a particular period on the basis of
such order, it will be open for the petitioner to
request the passport authority to grant him
passport for a limited period, during which he is
permitted to go abroad. The petitioner may
accordingly approach the concerned criminal
court, with a prayer to permit him to go abroad
and if any such application is preferred, the
concerned criminal court may decide such
application in accordance with law. If the
concerned Criminal Court, before whom the
criminal cases are pending, permits the
petitioner to go abroad, the passport authority
may pass appropriate order in the matter of
issuing passport to the petitioner in terms of the
order of the criminal court and subject to the
conditions laid down by the Notification. As
observed by the Bombay High Court, the
passport authority, in future cases of a similar
nature, may inform the applicants, against
whom any criminal case is pending, about the
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Notification of the Central Government and may
inform such applicant that they may approach
the concerned and if any such order is passed by
the Magistrate, permitting such applicant to go
abroad, the Passport Authority may dispose of
such applications in view of the Notification and
in view of the provisions of the Passports Act. It
is clarified that in case the criminal court permits
the petitioner to go abroad, the passport
authority shall act on the basis of such report for
the purpose of issuing passport. The passport
may not be refused solely on the ground of
pendency of the present criminal cases in case
the Magistrate so permits. It is clarified that if
there are other grounds available to the
passport authority to refuse the passport, it is
for the authority to consider the same in
accordance with law. The passport may not be
refused solely relying on the present criminal
cases, which are pending against the petitioner,
in case permission is granted by the Magistrate,
as indicated above. It is also clarified that
whether such application should be granted or
not is within the jurisdiction of the competent
Criminal Court and it is for the concerned
Magistrate to decide such application, if at all
the same is received from the present petitioner
and it is for the Magistrate to decide the same in
accordance with law and this Court has not
expressed any opinion on the aforesaid subject."
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Adverting to the contention raised by the learned
counsel for the respective parties, since the petitioner is no way
responsible for delay in the trial of the case and he is regularly
taking steps in the case and there is no material to show that he
will abscond and will not be available in Court as and when his
presence would be necessary at the vital stages of the criminal
proceedings and since the petitioner is a permanent resident of
village Paradeepgarh, I am of the humble view that the learned
Magistrate is to reconsider the petition of the petitioner keeping
in view of the relevant provisions under the Passport Act, 1967
and the Rules framed thereunder as well as the contents of the
passport application form and supplementary form and if the
Court decides to issue no objection certificate or necessary
permission for availing the passport, the fixation of the period
can also be considered by the concerned Court.
Accordingly, the impugned order is set aside and the
matter is remanded back to the learned J.M.F.C. (P), Kujang.
With the aforesaid observation, the CRLMC
application is disposed of.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 05th August, 2019/pravakar