Andhra Pradesh High Court - Amravati
This Writ Petition Is Filed Under ... vs Central Bureau Of Investigation1 Held ... on 19 January, 2023
Author: Battu Devanand
Bench: Battu Devanand
THE HONOURABLE SRI JUSTICE BATTU DEVANAND
WRIT PETITION NO.34656 OF 2022
1. This writ petition is filed under Article 226 of the
Constitution of India, seeking the following relief:
"To issue Writ of Mandamus directing the Respondent -
Passport Authority to expedite the decision pertaining to the pending passport application bearing Application No.VJ2074305207722 dated 14.06.2022 of the petitioner as early as possible not exceeding a period of two weeks from the date of the order of this Hon‟ble Court as any contrary would be violative of Articles 19 and 21 of the Constitution of India."
2. A counter affidavit has been filed on behalf of the respondent.
3. Heard Sri Umesh Chandra P.V.G, learned counsel for the petitioner and Ms. Alekhya Tadasina, learned counsel for the respondent and perused the record.
4. Learned counsel for the petitioner submits that, the petitioner is an authorized Licensed Airline Pilot (Commander) and licensed by Directorate General of Civil Aviation (DGCA). The petitioner started his airline career with Trujet airlines from DEV,J W.P.No.34656 of 2022 2 December, 2014 to July, 2020. One of his primary responsibilities includes flying the aircrafts as per the Roster and this job is the only livelihood option for him.
5. Learned counsel submits that, one of the important documents that the petitioner shall carry on board other than his licenses is an original valid passport and he needs to submit these documents in original to Flight Operations Inspector (FOI) of the DGCA. Moreover, passport is also essential to the petitioner whenever the airlines in which he is working as an employee intends to send the petitioner to a foreign country for the purpose of training and checks.
6. Learned counsel further submits that the petitioner shall also be required to have the passport if he intends to apply for any vacant positions/posts in any airlines which may have an open requirement of his cadre.
7. Learned counsel submits that, the original passport is one of the items that which was stolen from his residence as per the case registered basing on the complaint given by the petitioner before the Rajiv Gandhi International Airport, Shamshabad Police DEV,J W.P.No.34656 of 2022 3 Station in Crime No.568 of 2021 under Sections 448, 380, 406, 120-B r/w 34 of Indian Penal Code.
8. Learned counsel for the petitioner further submits that, the petitioner has applied on 14.06.2022 for re-issuance of his lost/stolen passport with the respondent-passport authority along with all requisite documents.
9. Learned counsel submits that, the respondent has sent an e-mail communication on 21.06.2022 to the petitioner, directing him to submit a „No Objection Certificate‟ from the Hon‟ble Senior Civil Judge Court, Addanki pertaining to a pending case of C.C.No.1 of 2017 in which the petitioner was arrayed as Accused No.2. Accordingly, the petitioner submitted the „No Objection Certificate‟ from the Hon‟ble Senior Civil Judge‟s Court, Addanki in connection with C.C.No.1 of 2017 and submitted the same to the passport authority at Visakhapatnam on 26.08.2022.
10. Even after submission of „No Objection Certificate‟ from the concerned Court, the respondent - authority did not take any action to consider the passport application submitted by the petitioner on 14.06.2022.
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11. Learned counsel contends that, the inaction of the respondent involves the livelihood and right to movement of the petitioner under Articles 19 and 21 of the Constitution of India and sought to allow the writ petition.
12. Learned counsel for the respondent submits that, the petitioner did not mention the case details of C.C.No.1 of 2017 pending before the Hon‟ble Senior Civil Judge‟s Court, Addanki, Prakasam District. Later, the petitioner submitted „No Objection Certificate‟ from the concerned Court.
13. Learned counsel contends that, on verification of records, it was found that, the Regional Passport Officer, Hyderabad had received Letter Nos.04/SB-FS/RCK/2021 dated 18.02.2021 and No.04/SB-FS/RCK/2021 dated 26.07.2021 from the Commissioner of Police, Rachakonda, wherein, they have mentioned that multiple criminal cases are pending against the petitioner.
14. The respondent has sent Letter No.VJ2074305207722 dated 01.11.2022 to the Commissioner of Police, Rachakonda to know the present status of the cases.
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15. Learned counsel submits that, as per the Section 6(2)(f) of the Passports Act, 1967, a passport may be refused on the ground that the proceedings in respect of criminal cases are pending before the Criminal Court. However, as per the Notification in G.S.R 570 (E) dated 25.08.1993, applicability of Section 6(2)(f) of the Passports Act, 1967, can be exempted if they obtain orders from the Court concerned.
16. In the present case, as the petitioner failed to produce „No Objection Certificate‟ from the concerned Court in two cases i.e. 1) Cr.No.366 of 2020 and (2) Cr.No.384 of 2020 pending before the Principal Junior Civil Judge-cum-XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar, application of the petitioner is not considered.
17. In the rejoinder filed on behalf of the petitioner, it is submitted that, Cr.No.366 of 2020 and Cr.No.384 of 2020 are still at the Primary Registered Case (P.R.C) stage with P.R.C No.179 of 2021 and P.R.C No.116 of 2021 before the Principal Junior Civil Judge-cum-XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar.
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18. Learned counsel submits that, as these two cases are at the stage of F.I.R stage before the concerned Magistrate and after committal, the concerned Sessions Court has to take cognizance and he contends that till cognizance has been taken by the concerned Sessions Court, it cannot be termed as pendency of criminal case and as such, the petitioner need not obtain „No Objection Certificate‟ from the concerned Court. The respondent unreasonably kept pending the application of the petitioner for a long period, which is not acceptable under law.
19. Having heard the submissions of the respective counsel, in our view, it is appropriate to look into the relevant provisions of the Passport Act, 1967, as extracted hereinunder:
Relevant provisions of issue and renewal of passports Section 6(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., DEV,J W.P.No.34656 of 2022 7
(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.
The refusal of a passport can be only in case where an applicant is convicted during the period of 5 years immediately preceding the date of application for an offence DEV,J W.P.No.34656 of 2022 8 involving moral turpitude and sentence for imprisonment for not less than two years.
Section 6(2)(f) relates to a situation where the applicant is facing trail in a criminal court.
The grounds on which the renewal of the passport of the petitioner is being refused could at best fall within Section 6(2)(f) of the Passport Act, 1967.
20. Section 2(f) of the Passport Act, 1967, has been considered on several occasions by the Hon‟ble Apex Court and High Courts.
21. The Hon‟ble Supreme Court of India in Vangala Kasturi Rangacharyulu vs. Central Bureau of Investigation1 held that, the passport authority cannot refuse renewal of the passport on the ground of pendency of a criminal appeal and directed the passport authority to renew the passport.
22. The learned single Judge of the Madras High Court in Ahamed Fahath vs The Regional Passport Officer 2 held that mere pendency of a First Information Report cannot be the legal basis for denial of issuance of a regular passport to the petitioner 1 Crl.Appeal No.1342/2017 dated 27.09.2021 2 W.P.No.20058 of 2020 dated 04.02.2021 DEV,J W.P.No.34656 of 2022 9 and that it is only after cognizance is taken by an appropriate Court that it can be held that criminal proceedings have commenced and issuance or renewal of the passport would depend on no objection being given by the concerned court.
23. The Madhurai Bench of Madras High Court in J. Mathanagopal vs. The Regional Passport Officer 3 held as extracted hereinunder:
"19. It is not in dispute that the case that is pending before the Judicial Magistrate, is yet to be taken cognizance by the Sessions Court and the case is still pending before the Judicial Magistrate in P.R.C. No. 32 of 2016 and as such, it cannot be termed to be a pendency of criminal case. In view of the same, the provisions of the Indian Passports Act, 1967 may not be attracted. While that being so, it would not be appropriate to direct the petitioner to approach the "concerned court" to obtain an order by way of a direction to enable him to get the relief before the passport authorities."
24. Learned counsel for the petitioner placed on record the Office Memorandum No.VI/401/1/5/2019 dated 10.10.2019 issued by the PSP Division, Ministry of External Affairs, 3 W.P.(MD) No. 23468 of 2017 and W.M.P.(MD) No. 19728 of 2017 Dated 23.07.2018 DEV,J W.P.No.34656 of 2022 10 Government of India, before this Court. In the said Office Memorandum, Point No.6 is extracted hereinunder:
"(vi) In case where the secondary Police Verification is also „Adverse‟, it may be examined whether the details brought out in the police report match the undertaking submitted by the applicant. 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."
25. The Central Government also issued an Undertaking in GSR 570(E) dated 25.08.1993 stipulating that No Objection Order would be required from a Court only if the Court has taken cognizance.
26. Considering the above settled law and the Office Memorandum No.VI/401/1/5/2019 dated 10.10.2019 issued by the Government of India, this Court has no hesitation to held that Section 6(2)(f) of the Passports Act, 1967, would arise when there is pending proceedings before the Criminal Court after cognizance is taken.
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27. In the present case, it is an admitted fact that two cases i.e. 1) Cr.No.366 of 2020 and (2) Cr.No.384 of 2020 pending before the Principal Junior Civil Judge-cum-XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar, are pending at the stage of committal and cognizance has not been taken by the competent court so far.
28. Accordingly, this writ petition is allowed, with a direction to the respondent to consider the passport application of the petitioner bearing Application No.VJ2074305207722 dated 14.06.2022 within a period of two (02) weeks from today, without raising any objection relating to pendency of two cases i.e. 1) Cr.No.366 of 2020 and (2) Cr.No.384 of 2020 pending before the Principal Junior Civil Judge-cum-XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar.
29. There shall be no order as to costs.
30. Consequently, miscellaneous applications pending if any shall stand closed.
_____________________________ JUSTICE BATTU DEVANAND Date:19.01.2023 Note: copy by tomorrow SP DEV,J W.P.No.34656 of 2022 12 THE HONOURABLE SRI JUSTICE BATTU DEVANAND WRIT PETITION NO.34656 OF 2022 Date:19.01.2023 SP