Madras High Court
Gandhi vs The Regional Passport Officer on 25 September, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
W.P.(MD)No.23331 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.23331 of 2023
Gandhi ... Petitioner
versus
1. The Regional Passport Officer,
Regional Passport Office,
Kochadai,
Madurai District.
2. The Inspector of Police,
Uchipuli Police Station,
Ramanathapuram District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
seeking for the issuance of Writ of Mandamus, to direct the first
respondent herein to renew the petitioner passport in Application in
File No.MD01C5078098722 application dated 10.10.2022 within the
time limit that may be stipulated by this Court.
For Petitioner : Mr.J.Vishnu
For R1 : Mr.K.Maharajan,
Central Government Standing Counsel
For R2 : Mr.P.Kottaichamy,
Government Advocate (Crl. Side)
1/8
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.23331 of 2023
ORDER
The petitioner was issued with a passport in the year 2012, however, the same was cancelled by the first respondent. Now, he has decided to go abroad for employment. Therefore, he has submitted an application on 10.10.2022 for renewal of his passport before the first respondent. Based on the police verification report that he is involved in a case in Crime No.159 of 2017 for the offence under Sections 109, 147, 148, 294(b), 307, 323, 324, 341 IPC, on the file of the second respondent, the first respondent, by his proceedings dated 18.10.2022, called upon him to submit his explanation for non-mentioning about the criminal case pending against him in the passport application. Though the petitioner submitted his explanation by way of a representation dated 21.07.2023, the same has not been considered by the first respondent.
2. The learned Central Government Standing Counsel appearing for the first respondent submits that at the time of applying for 2/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.23331 of 2023 passport, the petitioner has not mentioned about the criminal case pending against him in the passport application. Therefore, his application has not been considered.
3. The learned Government Advocate (Crl. Side) submits that the petitioner is involved in a case in Crime No.159 of 2017 for the offence under Sections 109, 147, 148, 294(b), 307, 323, 324, 341 IPC, on the file of the second respondent and the same is under investigation.
4. The learned counsel appearing for the petitioner submits that the pendency of a criminal case at the FIR stage is not a bar for issuance of a passport. Therefore, he seeks for a direction to the first respondent to issue passport to the petitioner.
5. Pendency of an FIR, by itself, cannot be a ground to refuse the passport. The Passport Authority can refuse the passport and any travel documents under Section 6 of the Passport Act, 1967. Section 6(2)(F) 3/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.23331 of 2023 of the Act would be relevant and the same is extracted as under:-
“6.Refusal of passports, travel documents, etc- ...
(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 -
...
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a Criminal Court in India.”
6. The above provision enables the Passport Authority to refuse the passport or travel document to an applicant on the ground that proceedings in respect of an offence alleged to have been committed by the applicant is pending before a Criminal Court. Registration of an FIR on the police files, based on a complaint, cannot be construed as a proceedings pending before the Criminal Court. 4/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.23331 of 2023
7. The role of the Court pending the investigation has been discussed by various Courts. In W.Jaihar William v. State of Tamil Nadu [2014 (2) CWC 684], this Court has held as follows:-
“8. ... It is well settled legal principle that mere pendency of FIR cannot be construed as pendency of criminal proceedings in respect of the offences alleged to have been committed by the applicant before the Criminal Court. Only after the Court takes cognizance of the offence alleged to have been committed by the applicant, as stipulated under Section 190 of Cr.PC., it can be construed as 'proceedings pending before the Court'”
8. A Division Bench of this Court in Arumugam v. Regional Passport Officer, Madurai [W.A(MD)No.301 of 2018, dated 27.03.2018], has held as follows:-
“8. ... mere pendency of the criminal proceedings cannot be construed as pendency of the criminal proceedings. The decisions relied on for reaching the said conclusion in the above cited decision, would also disclose that unless cognizance is taken by the concerned Magistrate, it does not amount to pendency of the criminal proceedings. Admittedly, 5/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.23331 of 2023 in the case on hand, the case is in FIR stage and even for the sake of arguments, subsequently, the charge sheet has been filed, as on the date of submission of the application for passport, only FIR is pending and it cannot be construed as pendency of a criminal case and it cannot be said that the petitioner has suppressed the material fact of pendency of the criminal case.”
9. In fact, the Ministry of External Affairs, Government of India, has issued a Circular dated 10.10.2019, wherein, the following instruction was issued:-
“5. In view of the above, the following instructions may be adopted while processing the passport applications in respect of those applicants who may have criminal proceedings pending before a criminal court in India:
...
(vi) ... 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 6/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.23331 of 2023 court has taken cognizance of the same.” Therefore, the Passport Authority is not justified in not deciding the application filed by the petitioner for renewal of passport by referring the criminal case.
10. Ordinarily, the duration of a passport as per Rule 12 of the Passport Rules is for a period of 10 years. In the event if the applicant is facing any criminal proceedings, the passport may be issued by restricting the period.
11. Accordingly, this writ petition is allowed with a direction to the Passport Authority to renew the passport of the petitioner, by considering his application, within a period of six weeks from the date of receipt of a copy of this order.
25.09.2023 ogy NCC : Yes / No. Index : Yes / No. Internet : Yes / No. 7/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.23331 of 2023 B.PUGALENDHI, J.
ogy To
1. The Regional Passport Officer, Regional Passport Office, Kochadai, Madurai District.
2. The Inspector of Police, Uchipuli Police Station, Ramanathapuram District.
W.P.(MD)No.23331 of 2023
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