Delhi High Court - Orders
Dipesh Lachhman Bhagtani vs Union Of India & Anr on 2 March, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11891/2019
DIPESH LACHHMAN BHAGTANI ..... Petitioner
Through: Mr. Bhrigo Dhami, Adv.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Ajay Digpaul, CGSC with Mr.
Kamal R. Digpaul, Adv. for UOI.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 02.03.2022
1. This petition has been filed by the petitioner with the following prayers:-
"In view of the facts and circumstances stated hereinabove, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to:
I. Issue a writ in the nature of Certiorari or such other appropriate writ, order or direction thereby quashing the order dated 28.06.2019 passed by the Respondent No.2/Chief Passport Officer, New Delhi thereby upholding the Passport impounding order dated 21.12.2018 passed by the Regional Passport Office, Mumbai.
II. Issue a writ in the nature of Mandamus or such other appropriate writ, order or direction thereby directing the Respondent No.2 / Chief Passport Officer, New Delhi to quash the Passport impounding order dated 21.12.2018 passed by the Regional Passport Office, Mumbai.Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:04.03.2022 20:52:25
III. Issue a writ in the nature of mandamus or such other appropriate writ, order or direction directing the Respondent No.2 to release the Passport of the Petitioner bearing No.Z2336250 dated 11.07.2012 and to restore the Passport facilities of the Petitioner or in alternative, the Respondent no.
2 be directed to pass an appropriate order directing the Regional Passport office, Mumbai to release the Passport of the Petitioner bearing No.Z2336250 dated 11.07.2012 and to restore the Passport facilities of the Petitioner, IV. Or pass any other order/orders which this Hon‟ble Court may deem fit and proper in the interest of justice, equity and fairness."
2. In substance, the petitioner is challenging the order dated June 28, 2019 passed by the respondent No.2 Chief Passport Officer upholding the impounding of passport of the petitioner vide order dated December 21, 2018 by the Regional Passport Office, Mumbai.
3. The submission of the learned counsel for the petitioner is that in December, 2018, a Criminal Case bearing CR No. 45/2017 u/s 409/420/120- B IPC read with Section 3/4/5/8/13 of Maharashtra Ownership Flats Act was registered by the EOW Cell, Mumbai Police alleging cheating etc. in sale and purchase of residential flats. The petitioner got an anticipatory bail on December 20, 2017 with an order to deposit the passport with the Investigating Officer. On May 25, 2018, the petitioner got bail in the aforesaid case. However, he continued to be in judicial custody in other criminal cases.
4. On August 06, 2018, the Regional office of the respondent No.2 issued a show cause notice to the petitioner as to why his passport should Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:04.03.2022 20:52:25 not be impounded under Section 10(3)(e) of the Passport Act, 1967. The petitioner gave a reply on August 28, 2018 requesting not to impound the passport of the petitioner.
5. On December 21, 2018, the Regional Office of the respondent No.2 passed an order impounding the passport of the petitioner by stating in paragraphs 5, 6 and 7 as under:-
"5. AND WHEREAS it is confirmed that criminal proceedings are pending against Shri Dipesh Lachhman Bhagtani, he was informed vide this office letter dated 28.09.2018 that it is proposed to impound his passport No.Z2336250 dated 11.07.2012.
6. AND THEREFORE, it is felt that this is a fit case to invoke section 10(3)(e) of the Passports Act, 1967, it is therefore, hereby ordered to impound passport of Shri Dipesh Lachhman Bhagtani vide No.Z2336250 dated 11.07.2012 u/s 10(3)(h) of the Passports Act, 1967 which lays down that:
Sec.10(3)(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."
6. Shri Dipesh Lachhman Bhagtani may, if he so desires, appeal against the above decision before the Joint Secretary (PSP) and Chief Passport Officer, Passport Division, Ministry of External Affairs, Patiala House Annexe, Tilak Marg, New Delhi-110001, not later than 30 days from the date of receipt of hti sorder. Appeal should be accompanied by fee of Rs.25/- (Rupees Twenty Five only) which has to be paid in cash at the Treasury or at the Regional Passport Office, Mumbai, under the Head of Accounts „0070-other Administrative Services-other Receipts‟."
7. Thereafter, on January 21, 2019 the petitioner filed an appeal before the respondent No.2. It is that appeal, which was decided by the Appellate Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:04.03.2022 20:52:25 Authority i.e. respondent No.2 rejecting the same. Paragraphs 8 of the same reads as under:-
"8. And now therefore, having gone through all the records and in the light of full facts and circumstances of the case, I as the Appellate Authority, as per the provisions u/s 11 of the Passports Act, 1967, decide the appeal as under:
(i) under Section 10(3)(e) of the Passports Act, 1967, 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.
(ii) Since the court cases were pending before the Hon‟ble Court, the action of the PO in impounding passport No. Z-
2336250 u/s 10(3)(e) of the Passports Act, 1967, was in order.
(iii) The appeal is not allowed."
8. Though, counter affidavit has not been filed, Mr. Digpaul, learned counsel appearing for the respondents has made his oral submissions.
9. The submission of the learned counsel for the petitioner primarily is that the order of the Appellate Authority is an unreasoned order. According to him, the impugned order except referring to the provision of the Passport Act, 1967, does not spell out the reasons for impounding the passport. He also states that when the passport has been deposited with the IO in terms of the bail order, there was no reason for the passport authorities to impound the passport. Learned counsel for the petitioner has relied upon the following judgments, in support of his submissions:-
Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:04.03.2022 20:52:25(i) Manish Kumar Mittal v. Chief Passport Officer & Anr. MANU/DE/2326/2013;
(ii) Siddhartha Ashish Dey v. Union of India & Ors. W.P.(C) 7339/2015 decided on December 08, 2015;
(iii) Vinod Kumar Asthana v. Joint Secretary (PSP) Chief Passport Officer & Anr. MANU/DE/1362/2019.
10. On the other hand, Mr. Ajay Digpaul, learned counsel appearing for the respondents would justify the orders passed by the respondents. According to him, there is not one FIR but five FIRs, which are pending against the petitioner and also the fact that father and brother of the petitioner have left the Country and are not available for the investigation the prayers made in the petition should not be granted.
11. Having heard the learned counsel for the parties, there is no dispute that there are five FIRs, which have been filed against the petitioner and others. The charge sheets have since been filed in the Criminal Court. The submission of Mr. Digpaul is that the father and brother of the petitioner have left the Country and are not available for investigation has not been denied by learned counsel for the petitioner. The only submission of the learned counsel for the petitioner is that the Appellate Authority has passed an unreasoned order. Even if the Appellate Authority has not justified the impugned action by reasons, in the facts of this case, the same cannot be interfered with.
12. Insofar as the judgments relied upon by learned counsel for the petitioner with regard to the above proposition, suffice to state, in Manish Kumar Mittal (supra), it was held even if a criminal case is pending against a person that by itself does not require the Regional Passport Officer to Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:04.03.2022 20:52:25 impound / revoke the passport in every case. It is only in appropriate cases and for adequate and cogent reasons that such an order can be passed. Suffice to state, in the said case there was one FIR under the provisions of Section 498A and 406 of IPC, that too pursuant to the complaint made by his wife whereas in the present case there are five FIRs, which are pending wherein charge sheets have been filed in the Criminal Court. The charges are of very serious nature under the provisions of IPC and Maharashtra Ownership Flats Act by the EOW Cell. Hence, the judgment is distinguishable.
13. On similar proposition is the judgment in Siddhartha Ashish Dey (supra) wherein the FIR was also under Section 498A/34 IPC and the Court relying upon the judgment in the case of Manish Kumar Mittal (supra) including Vinod Kumar Gupta v. Union of India & Ors. W.P.(C) No. 11358/2015, wherein the Court had held that it is not in all cases that pendency of proceedings in a Criminal Court will entail impounding or revocation of passport. The passport authority is expected to apply its mind, whether in the facts and circumstances of the case, a case for impounding of the passport is made out or not and it is in those facts, the directions were made by the Court. The judgment is distinguishable.
14. In the case of Vinod Kumar Asthana (supra), no doubt, the FIR has been filed under the provisions of Section 120B read with Section 420 of the Indian Penal Code, 1860 read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988, but the Court had also noted that the charge sheet has been filed before the Court concerned, which has been taken cognizance by the Special Judge and the petitioner has filed an application before the Court seeking permission to travel which application Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:04.03.2022 20:52:25 was allowed, subject to various conditions and by relying upon the judgment in case of Manish Kumar Mittal (supra) and also Siddhartha Ashish Dey (supra), the Court was of the view, in the facts of that case, impounding of passport is not warranted considering that the petitioner had already been called upon to deposit the same with the concerned Court and further, the permission has already been granted to the petitioner to travel overseas. The judgment is distinguishable in the facts of this case for two reasons; (i) there is not one FIR but five FIRs filed against the petitioner which has resulted in filing of the charge sheets and; (ii) father and brother of the petitioner are not available for investigation in the Country.
15. For the aforesaid reasons, I do not see any reason to interfere with the impugned action in exercise of power under Article 226 of the Constitution. The petition is dismissed.
V. KAMESWAR RAO, J MARCH 02, 2022/jg Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:04.03.2022 20:52:25