Rajasthan High Court - Jodhpur
Om Prakash vs State Of Rajasthan (2024:Rj-Jd:51573) on 13 December, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:51573]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 8764/2024
Om Prakash S/o Sh. Sukhdev, Aged About 43 Years, R/o G-31,
Shubham Farm, Pal Road, Jodhpur (Raj)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Firoz Khan
For Respondent(s) : Mr. Vikram Singh Rajpurohit, Dy.GA
For Complainant : Mr. P.C. Solanki
HON'BLE MR. JUSTICE FARJAND ALI
Order 13/12/2024
1. The instant Criminal Misc. Petition under Section 482 Cr.P.C has been filed by the petitioner being aggrieved from the order dated 03.12.2024 passed by learned Special Additional Chief Judicial Magistrate (PCPNDT Act Cases), Jodhpur Metropolitan, Jodhpur (hereinafter to be referred as 'the trial court') in FIR No.131/2023 registered at Police Station Mahila Thana (Jodhpur City West), District Jodhpur City West, whereby the application filed of the petitioner for granting permission to go abroad was rejected.
2. Brief facts of the case are that on 13.06.2023, an FIR No.131/2023 got registered at Police Station Mahila Thana (Jodhpur City West), District Jodhpur City West against the petitioner and his family members for the offences under Sections 498-A, 406, 323, 325, 315 of IPC and Sections 3, 4 of Dowry (Downloaded on 16/12/2024 at 09:47:46 PM) [2024:RJ-JD:51573] (2 of 7) [CRLMP-8764/2024] Prohibition Act. Upon completion of investigation, the petitioner preferred a regular bail application, which was allowed with the condition that he would not leave the country without permission of the learned trial court. Thereafter, the applications dated 08.11.2023 and 20.05.2024 of the petitioner seeking permission to go abroad were allowed by the learned trial court and in compliance of that, he appeared before the learned trial court well within the stipulated time and did not cause any delay in proceeding pending before it. Now, the petitioner again moved an application for going abroad for two months; however, the same was rejected by the learned trial court vide order dated 03.12.2024. Hence, this criminal misc. petition.
3. This Court has dealt with the similar issue in the case of Balkaran Singh Vs. State of Rajasthan [S.B. Criminal Misc.
Petition No. 7824/2022] dated 21.11.2022. The relevant paragraphs of the order are being reproduced herein below:-
"It is significant to note here that the Passports Act, 1967 does not confer absolute power upon a citizen to obtain passport. Section 6(1) & (2) of the Act prescribe certain conditions/eventualities when the passport authority is required to turn down request to make an endorsement or issue passport which includes a condition when an applicant is an accused in a criminal case. Relevant extract of section 6(2) is reproduced hereinbelow:-
"(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;(Downloaded on 16/12/2024 at 09:47:46 PM)
[2024:RJ-JD:51573] (3 of 7) [CRLMP-8764/2024]
(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."
To diminish the rigour of sub-section (2)(f) of section 6, the Central Government has issued a notification dated 28.06.1993 which enables the passport authority to issue passport even in the case of a person covered by clause (f) of sub-section (2) of section 6 of the Act. The notification dated 28.06.1993 is reproduced as under in its entirety:-
"GSR 570(E)- In exercise of the powers conferred by clause (a) of Section 22 of the Passports Act, 1967 (15 of 1967) and in supersession of the notification of the Government of India in the Ministry of External Affairs No. GSR 298(E) dated the 14" April 1976, the Central Government, being of the opinion that it is necessary ni public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of Clause (f) of sub- section (2) of Section 6 of the said Act, subject to the following conditions, namely:- (a) the (Downloaded on 16/12/2024 at 09:47:46 PM) [2024:RJ-JD:51573] (4 of 7) [CRLMP-8764/2024] passport to be issued to every such citizen shall be issued -
(i) for the period specified in order of the court referred to above, if the court specifies a period for which the passport has to be issued; or
(ii) if no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period of one year;
(iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period validity of the passport, the passport shall be issued for one year;
(iv) if such order gives permission to travel abroad for a period exceeding one year, and does not specify the validity of the passport, then the passport shall be issued for the period of travel abroad specified in the order.
(b) any passport issued in terms of (a)(ii) and
(a)(iii) above can be further renewed for one year at a time, provided the applicant has not travelled abroad for the period sanctioned by the court; and provided further that, in the meantime, the order of the court is not cancelled or modified;
(c) any passport issued in terms of (a)(i) above can be further renewed only on the basis of afresh court order specifying a further period of validity of the passport or specifying a period for travel abroad;
(d) the said citizen shall given an undertaking in writing to the passport issuing authority that he shall, if required by the court concerned, appear before it at any time during the continuance in force of the passport so issued."
The aforementioned notification provides that upon production of an order from the Court, an application for grant of passport shall be considered. In case the order of the Court does not disclose the period for which the passport is to be issued, then, the passport authority will issue the passport for a period of one year only or as the case may be.
An accused desirous of seeking permission or order of getting exemption from rigour of clause (f) of section 6(2) of the Act in terms of the notification dated 28.06.1993 may or may not specify the period of stay and place of visit, but in an appropriate case, Court can still consider his request and pass an order in this regard. Court's duty in dealing with such 'application' is to see the nature of offence and the necessity of travel. An order in terms of the notification dated 28.06.1993 cannot be passed as a matter of course/or in routine.
Notification dated 28.06.1993 requires the Court to grant permission to travel abroad and on the basis of such (Downloaded on 16/12/2024 at 09:47:46 PM) [2024:RJ-JD:51573] (5 of 7) [CRLMP-8764/2024] order, the passport is required to be issued. If such order does not specify the period of travel, passport can be issued for 1 year. Petitioner has stated in his application that his children reside in Australia and Canad and he is supposed to visit them for social gatherings and family get togethers. True it is that he has not given specific date or period of travel but the trial Court should have passed order of issuing passport. Passing of an order in terms of the Notification dated 28.06.1993 is slightly different than grant of permission to travel abroad.
In considered opinion of this Court the trial Court has therefore, erred in rejecting petitioner's application for issuing passport, which was in essence an application for order in terms of notification dated 28.06.1993. The order of the trial Court is thus, liable to be set aside and thus this Court persuaded to quash the same.
It is noteworthy that the petitioner is of 72 years old man and the pendency of a criminal case is not an impediment for the court for issuance of passport in these circumstances, the passport authority should not refuse to issue passport to the petitioner in the face of sub-section (e) of section 6 of the Passports Act. Clause (e) provides for refusal of passport where a person has been sentenced with imprisonment for a period not below two years within the five years preceding his application for passport under section 5 of the Passports Act. The petitioner has not been sentenced, hence he has not acquired any disqualification.
In light of the discussion made hereinabove, the instant petition is disposed of with a liberty to the petitioner to make an application afresh before the competent authority, following the procedure prescribed under section 5 of the Passports Act. If the petitioner prefers such an application, the passport authority shall consider the same in light of the relevant provisions of Passports Act as well as of the instant order without being influenced by the order passed by the trial Court on 13.07.2022.
The present petition is disposed of accordingly. The stay application also stands disposed of."
4. The similar issue has been elaborately discussed by the Coordinate Bench, Jaipur in the case of Neeraj Saxena Vs. Rajasthan Electronics and Instruments Ltd. [S.B. Civil Writ Petition No. 16380/2024] dated 23.10.2024 For ready reference, the relevant paragraphs of the order are being reproduced herein below:-
"10. Hon'ble Apex Court in the case of Smt. Maneka Gandhi Vs. Union of India, reported in AIR 1978 SC 597, has held that the expression "personal liberty" under Article 21 of the Constitution of India has a wider amplitude which (Downloaded on 16/12/2024 at 09:47:46 PM) [2024:RJ-JD:51573] (6 of 7) [CRLMP-8764/2024] includes right to go abroad. A person cannot be deprived to this right except in accordance with the procedure prescribed by the law.
11. Similarly in the case of Satish Chandra Verma (supra), the Hon'ble Supreme Court has held as under:-
"The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage; family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right."
12. .........
13. Even the Supreme Court of the United States in the case of Kent v. Dulles, reported in 357 US 116 1958, decided on 16.06.1958, has held as under:-
"(i) Freedom to go abroad has much social value and represents the basic human right of great significance.
(ii) Right to travel is a part of "liberty" of which a citizen cannot be deprived without due process of law."
5. In this view of the matter, the criminal misc. petition is allowed. The order dated 03.12.2024 passed by learned Special Additional Chief Judicial Magistrate (PCPNDT Act Cases), Jodhpur Metropolitan, Jodhpur in a matter arising out of FIR No.131/2023 registered at Police Station Mahila Thana (Jodhpur City West), District Jodhpur City West is hereby quashed and set aside.
6. The petitioner is permitted to go to abroad to earn his livelihood for a limited period i.e. for four months after his immigration check out. The pendency of criminal case arising out of FIR No.131/2023 registered at Police Station Mahila Thana (Jodhpur City West), District Jodhpur City West shall not be taken as an impediment against him for issuance of passport and obtaining a visa to visit abroad provided he furnishes a personal (Downloaded on 16/12/2024 at 09:47:46 PM) [2024:RJ-JD:51573] (7 of 7) [CRLMP-8764/2024] bond in the sum of Rs.10,00,000/- as well as surety bond in the like amount which shall be furnished by either his father or by his mother. The petitioner shall furnish his income, assets and property related particulars with the learned trial court before leaving the country in the light of judgment passed by the Hon'ble Supreme Court in the case of Rajnesh Vs. Neha reported in (2021)2 SCC 324 so also his bank account number and bank name. He shall also furnish an undertaking to the effect that if any of the condition is contravened, his surety bond so furnished shall be forfeited and amenable to recovery. It is further made clear that his foreign visit shall not exceed more than four months from his immigration.
7. The stay petition also stands disposed of.
(FARJAND ALI),J Abhishek Kumar S.No.318 (Downloaded on 16/12/2024 at 09:47:46 PM) Powered by TCPDF (www.tcpdf.org)