Calcutta High Court (Appellete Side)
Kabir Hossain Mondal vs Union Of India & Ors on 8 December, 2011
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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Form No. J (2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Ashim Kumar Roy
W. P. No. 14582 (W) of 2007
Kabir Hossain Mondal
versus
Union of India & Ors.
For Petitioner : Mr. Sourav Bhagat
Ms. Sayanti Santra
For U.O.I. : Mr. Uttam Majumder
Mr. Debasish Kundu
Heard On : September 1st, 2011.
Judgment On : 08-12-2011.
The subject matter of challenge in this writ-application is an order passed
by the respondent no. 4, Superintendent (Administration), Regional Passport
Authority, Ministry of External Affairs, Government of India, impounding the Passport of the petitioner.
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2. It is the case of the writ-petitioner that he is a bona fide passport holder having Passport No. E2832990 issued on October 9, 2002 which is to remain valid till October 8, 2012. It is his further case, on or about third week of February, 2006 he received a show cause notice issued by the respondent no. 4, calling upon him to show cause as to why his passport should not be impounded under Section 10 (3)(e) of the Passport Act, 1967 (hereinafter referred to as "the said Act") as it has come to the notice of the said respondent that the petitioner is involved in Howrah G.R.P.S. Case No. 201/05. The petitioner duly submitted his reply against the said show cause notice contending that in the given facts and circumstances his passport is not liable to be impounded. Soon thereafter petitioner received another letter whereby he was again called upon to furnish either an order of acquittal or an order from the Court concerned permitting him to hold the passport. The petitioner again submitted his reply within the stipulated period. However he received no further communication from the said respondent in this regard and finally came to learn that on April 17, 2007 the respondent no. 4 communicated to the different authorities in-charge of various departure points from India as well as other concerned authorities that the passport of the petitioner has been impounded. In the said communication the addressees were also requested that if the passport in question is found or presented to them for any service, the same may be impounded and be forwarded to the respondent no. 4 for disposal. They were also requested to maintain a warning card on the writ-petitioner and should not extend passport facilities of any kind to him without taking prior clearance from the respondent no. 4. 3
3. Now, the learned Counsel appearing on behalf of the petitioner vehemently contended that the order impugned was passed mechanically and no reason was assigned for impounding his passport. He further submitted that in the given facts and circumstances of the case there is no scope nor the respondent authorities were justified in impounding his passport. Accordingly, he prays the order of impound of passport be quashed and the communication made thereunder to different authorities pursuant to impound of his passport be recalled.
On the other hand, at the very outset the learned Counsel appearing on behalf of the respondent authorities contended that the instant writ- application is not maintainable, since the order impugned is an appealble order and appeal lies before the Chief Passport Officer, Ministry of External Affairs, New Delhi. Therefore the petitioner having alternative remedy under the statute cannot approach this Court to ventilate his grievances. The learned Counsel of the respondents further urged that the order of impounding passport is absolutely justified and question of assigning further reasons does not at all arise, as before impounding of passport a show cause notice was issued calling upon the writ-petitioner to explain as to why his passport should not be impounded and in the said show cause notice it was clearly spelt out as to why the respondent authority proposed to impound his passport. It is further contended that the respondent authority being informed by the police that a case 4 being Howrah G.R.P.S. Case No. 201/05 is registered, at once issued show cause notice to the writ-petitioner and as his reply was not found to be satisfactory very rightly his passport was impounded. Accordingly, the learned Counsel of the respondent authorities submitted this writ-application is completely devoid of any merit and the same be dismissed.
4. Now, before adverting to rival contention of the parties on the issue whether the impounding of passport is factually and legally justified or not, it would be proper to first looked into the order impugned, which is quoted below;
"It has been decided to impound the above mentioned passport. It is, therefore, requested that the passport in question found or presented to you for any service may please be impounded and forwarded to this office for disposal. You are requested to maintain a warning card on KABIR HOSSAIN MONDAL and should not extend passport facilities on any kind to him without taking our prior clearance."
The aforesaid communication is annexed with the instant writ- application as Annexure 'P-8'.
No other order was either brought on record with the affidavit-in- opposition or was otherwise produced before this Court on behalf of the respondents.
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5. Now, having gone through the order impugned, I find that the same only divulged the decision of the respondent no. 4 that the passport of the petitioner is impounded. In the said order no reason has been indicated which persuaded the respondent authorities to impound the passport.
It needs no mention every decision of the respondent authorities, who happened to be the instrumentality of the State, must always be supported by reason when by such decision a legal right of a citizen is adversely effected.
"Decision" does not merely mean the "conclusion". All "decisions" embrace within its fold the reasons forming basis for arriving at the "conclusion". The principle of natural justice has many facets and one of which is that all administrative action must always be informed by reasons. In other words, the reasons for the order adversely affecting the rights and interests of a person, i.e. a speaking order is an integral part of the principle of natural justice. Apart from that, according to the provisions of sub-section (5) of Section 10 of the said Act, it is incumbent upon the passport authority while making an order impounding a passport or travel document under sub-section (3) of Section 8 of the Act, a brief reason for making such order must always be recorded.
However, on the face of the impugned order, this court finds the same goes like this, "it has been decided to impound the passport". No reason has been assigned as to why the passport of the petitioner has been impounded nor any factual background which prompted the respondent authorities to take such a decision curtailing the petitioner's right to move out of this country. The passport has been impounded by a cryptic, non-speaking and laconic order. 6 Therefore the impugned order clearly depict clear violation of principle of natural justice as well as the statutory requirement as embodied in the said Act. It needs no mention that it is well-settled when an administrative action is vitiated by non-compliance of principle of natural justice, the availability of alternative remedy, even when such remedy is enough, efficacious and sufficient, the same would not operate as a bar to invoke the extraordinary writ jurisdiction of High Court. Therefore, the contention of the learned advocate of the respondent that this writ application is not maintainable because there is provisions for statutory appeal merits no consideration and deserves to be rejected.
6. An identical issue came for decision before the highest Court of the land in the case of Maneka Gandhi Vs. Union of India, reported in AIR 1978 SC 597, in which our Apex Court laid down as follows;
"62. Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded. Moreover, a passport can be impounded by the Passport Authority only on certain specified grounds set out in sub-sec. (3) of S. 10 and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The Passport Authority is also required by sub-sec. (5) of S. 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. Where 7 the Passport Authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by S. 11, and in the appeal, the validity of the reasons given by the Passport Authority for impounding the passport can be canvassed before the Appellate Authority. It is clear or a consideration of these circumstances that the test laid down in the decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority to impound a passport is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A.K. Kraipak's case (AIR 1970 SC 150). The same result must follow in view of the decision in A.K. Kraipak's case, even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences."
7. Now, having gone through the materials on record, it is found that it is true that before making an order for impounding the passport, the respondent no. 4 issued a show cause notice calling upon the writ-petitioner to show cause as to why his passport shall not be impounded in exercise of power conferred under Section 10 (3)(e) of the said Act, because it has come to the notice of the said respondent that he was involved in Howrah G.R.P.S. Case No. 201/05. 8
Therefore, according to the said show cause notice impounding of the passport of the writ-petitioner was contemplated in exercise of the power conferred under Section 10 (3)(e) of the said Act, which read as follows;
S. 10 (3) (e) of the Passport Act.
"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."
On a bare reading of the aforesaid provisions, it appears that the passport authority is duly empowered to impound or cause to be impounded or revoke a passport or travel document, if it is found any proceeding in respect of an offence alleged to have been committed by the holder of the passport or travel document is pending before a criminal court in India. Thus, it is well within the jurisdiction of the Passport Authority to impound a passport when any proceeding in respect of an offence, i.e. a criminal proceeding is pending against the holder of the passport, in any Court in India.
8. The question when a criminal proceeding is instituted and consequently it be said that such a proceeding is pending before a Court of law came up for consideration before the Hon'ble Supreme Court in the case of Raghubans Dubey Vs. State of Bihar, reported in AIR 1967 SC 1167, when the Apex Court in no uncertain term held a proceeding can said to have been instituted only when police submitted its report and cognizance is taken by a Court under Section 190 (1)(b) of the CrPC. Earlier to that, the Apex Court in the 9 case of R. R. Chari Vs. State of U.P., reported in AIR 1951 SC 207 also had the occasion to deal with a similar situation and held as follows;
"It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Mag. under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined in the Cr.P.C. on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation & come to the Mag. for the issue of a process. The third is when the Mag. himself takes notice of an offence & issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter. Can arrest a person without obtaining an order from the Mag. Under s. 167 (b), Cr.P.C. the police have of course to put up the person so arrested before a Mag. within 24 hours & obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Mag. first. Therefore, in cases of cognizable offence before proceedings are initiated & while the matter is under investigation by the police the suspected person is liable to be arrested by the police 10 without an order by the Mag. It may also be noted that the Mag. who makes the order of remand may be one who has no jurisdiction to try the case."
9. Such being the position on the mere fact a report has been lodged with the police against a holder of a passport alleging commission of some offences, it cannot be said that a criminal proceeding has been instituted and is pending in a Court unless cognizance is taken by a Court on a police report or otherwise.
The learned Counsel appearing on behalf of the respondent authorities never claimed that already the investigation is over and upon submission of a police report a competent court has taken cognizance thereupon. On the other hand, it appears from the averment made in the affidavit-in- opposition that the passport officer has impounded the passport under Section 10 (3) of the said Act and passport was impounded keeping in mind that the writ- petitioner may not leave the country without facing his trial. The grounds that have been urged in support of impounding the passport never empowered the passport authority to impound passport under Section 10 (3) of the said Act. Therefore, the power exercised by the respondent no. 4 by assuming authority under Section 10 (3)(e) of the said Act is completely illegal, erroneous, arbitrary. Besides such facts the order impugned was made completely bypassing the principle of natural justice as well as the statutory requirement of recording of reasons and there is also a complete non-application of mind. 11
For the reasons stated above, the order impugned is quashed. The respondent authorities are directed to return the passport to the writ petitioner, if the same has been seized and is lying in their custody and they are further directed to at once recall the communication made vide the order impugned.
However, I make it clear this order will not in any way preclude the respondent authority to initiate a proceeding afresh for impounding of the passport of the writ-petitioner, if situation so arises, in accordance with law.
This writ application thus stands allowed without any order as to costs.
Urgent Photostat certified copy of this Judgement be given to the parties, if applied for on usual undertaking.
( Ashim Kumar Roy, J. )