Calcutta High Court (Appellete Side)
Pg (Abdul Kalam Gazi & Anr vs The Union Of India on 11 March, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
1
53 11.03.2014 W.P.7395(W) of 2014
pg (Abdul Kalam Gazi & Anr. Vs. The Union of India
& Ors.)
Mr. Prosenjit Mukherjee
Ms. Sudipa Biswas.......for the petitioners
Mr. Ganesh Chandra Panda....for the Union of India
Mr. Prodip Kr. Dutta
Mr. K.M. Hossain........for the State
Mr. Jahangir Hossain...for the respondent no.7
The petitioners applied for passport. While the passport officer has accepted the application of the petitioner no.2 and issued the passport in her favour, issuance of passport in favour of the petitioner no.1 is on the verge of being refused on the ground that he suppressed a material information in his application for passport. Although the petitioner no.1 is implicated in Mathurapur Police Station case no. 43 of 1998 dated May 29, 1998 and in connection therewith, charge sheet being C.S. 70 dated October 19, 1998 under sections 147/148/149/323/324/325/506 of the Indian Penal Code has been submitted before the learned magistrate, the petitioner did not disclose such fact in his application.
Section 6 of the Passports Act, 1967 (hereafter the 'Act') contains provisions empowering the passport officer to refuse an application for passport. In terms of clause (f) of sub section (2) of section 6, a passport may be refused on the ground that proceedings in respect of 2 an offence alleged to have been committed by the applicant are pending before a criminal court in India. Mr. Panda, learned advocate for the passport officer has referred to such provision while supporting his action of contemplating to refuse passport in favour of the petitioner no.1.
Mr. Mukherjee, learned advocate appearing for the petitioners submits that the charge in the criminal case is yet to be framed by the learned magistrate and, therefore, it cannot be contended that criminal proceedings are pending against the petitioner no.1. He has relied on the decision of a learned Judge of this Court reported in 2010(1) CHN 834 [Kamal Kumar Narottam Dash Parekh vs. Superintendent (Administration) Regional Passport Office, Ministry of External Affairs & Ors.].
The ratio of Kamal Kumar Narottam Dash Parekh (supra) does more harm than good for the cause of the petitioner no.1. It has been held there as follows:
"The proceedings that reaches the Court in course of investigation cannot be held to be a 'proceeding pending in a Court'. Such proceedings remain still at the stage of investigation, and gets transformed into a 'proceeding pending in a Court' only, and if, cognizance thereof is taken by the Court."
Since it appears from page 21 of the writ petition that May 06, 2014 has been fixed as the next date by the learned magistrate for framing of charge, an irresistible inference can be drawn that cognizance of the 3 offence has already been taken by him.
Mr. Mukherjee has also placed reliance on a decision of a learned single Judge of the Allahabad High Court in Muneer Ahmad vs. State of U.P. & Anr. I have considered the said decision and find that the ratio thereof does not fit in with the facts of the present case. There, Muneer Ahmad had disclosed in his application the factum of pendency of criminal proceedings against him and there was no restriction imposed in connection with such criminal case in regard to his travel abroad for performing Haj. It is in such circumstances that relief was granted to him.
In view of the decision of another learned single Judge of this Court reported in 1994(2) CLJ 165 (In Re:
Basudev Mitra), a criminal proceeding is said to be pending against an accused once the learned magistrate takes cognizance of the offence. The contemplation of the passport officer to refuse passport to the petitioner no.1 referring to section 6(2)(f) of the Act, therefore, appears to be unexceptionable.
There is one other reason why the petitioner no.1 is not entitled to discretionary relief from the Court. In his application for passport, he ought to have disclosed that he is an accused in a criminal case. Not being fair and frank, he cannot expect discretionary jurisdiction to be exercised in his favour.
I find no reason to interfere and the writ 4 petition stands dismissed insofar as the petitioner no.1 is concerned.
Needless to observe, since the petitioner no.2 has been issued a passport, she shall be entitled to reap the benefits of such passport and the writ petition at the instance of the petitioner no.2, consequently stands disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously.
(DIPANKAR DATTA,J.)