Madras High Court
Ashok Muthana vs The Regional Passport Officer on 24 September, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24-09-2014
CORAM:
THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN
Writ Petition No.33546 of 2013
Ashok Muthana ... Petitioner
Vs.
1. The Regional Passport Officer,
Chennai, The Government of India,
Ministry of External Affairs,
Regional Passport Office,
New No.158, Rayala Towers,
Anna Salai, Chennai - 600002.
2. The State of Tamil Nadu
Rep. by the Superintendent of Police,
Economics Offences Wing (II),
Chennai, C 48, II Avenue,
TNHB Complex, 3rd Floor,
Anna Nagar, Chennai - 600 040. ... Respondents
Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Certiorarified Mandamus to call for the records of the proceedings of the first Respondent herein made in MAS/3460/122/2002 and MAS/PRE/1773/03 dated 12.11.2013 and quash the same and direct the first Respondent to renew the petitioner's passport bearing No.Z-2394865.
For Petitioner .. Mr.K.S.Rajagopalan
For Respondents .. Mr.S.Haja Mohideen Gisthi.
Orders Reserved on : 12.09.2014
Orders Pronounced on: 24-09.2014
O R D E R
The petitioner has come up with the above writ petition challenging the proceedings of the first Respondent refusing to re-issue the passport.
2. The petitioner was the Ex-Chairman of a non-banking Finance Company which went into liquidation. Lot of Criminal Complaints came to be filed on the file of the Economic Offences Wing. The petitioner was arrested in Crime No.1 of 2001 and was later released on bail by this Court. As one of the conditions for the grant of bail, his passport had to be surrendered to the court of the Additional Chief Judicial Magistrate, Kumbakonam. However, this Court, by order dated 20.12.2004 passed in Crl.M.P.No.11297 of 2004 directed the return of the passport for renewal and also permitted the petitioner to travel to USA during the period from June 2005 to July 2005.
3. But when the petitioner submitted an application for extension of the validity of the passport, which was to expire on 17.02.2005, the Regional Passport Office directed the petitioner to obtain orders of this Court. Therefore, the petitioner filed a writ petition in W.P.No.24158 of 2006 for the issue of a writ of mandamus to direct the Regional Passport Officer to extend the validity of the passport beyond 17.02.2005.
4. The said writ petition was disposed of by this Court by an order dated 12.09.2006, directing the Assistant Passport Officer to renew the passport and to keep it in the custody of the XI Metropolitan Magistrate, Saidapet. In pursuance of the said decision, the passport was renewed and was kept in the custody of the XI Metropolitan Magistrate, Saidapet.
5. Subsequently, the petitioner applied for return of passport, but his application in Crl.M.P.No.4460 of 2006 was dismissed by the learned XI Metropolitan Magistrate, by order dated 22.01.2007. Challenging the said order, the petitioner filed a Revision in Crl.R.C.No.287 of 2007. The Revision Petition was allowed by this Court by an order dated 26.02.2007 directing the trial Court to return the passport, with some conditions. Accordingly, the passport was returned.
6. Thereafter, a fresh passport was also issued with the validity for a period from 30.09.2008 to 16.02.2015. When the petitioner applied for the issue of additional sheets, the passport was reissued only with a validity period of one year from 01.06.2012 to 31.05.2013. Therefore, when the petitioner again applied, on 17.09.2013, he was issued with a passport valid only up to 04.12.2013. In the meantime, a show cause notice dated 04.10.2013 was issued by the Regional Passport Officer, calling upon the petitioner to show cause as to why action should not be initiated for the suppression of information regarding 5 cases pending against the petitioner in the Economic Offences Wing. The petitioner gave a reply dated 10.10.2013 pointing out that he had not suppressed any information and that details about these cases already form part of the record in the order passed in W.P.No.24158 of 2006.
7. Thereafter, the Regional Passport Officer sent a communication dated 12.11.2013, rejecting the request of the petitioner for reissue of passport, till the Criminal Cases are disposed of. Therefore, challenging the communication dated 12.11.2013 and seeking a direction to the first Respondent to renew his passport, the petitioner has come up with the above writ petition.
8. I have heard Mr.K.S.Rajagopalan, learned counsel for the petitioner and Mr.S.Haja Mohideen Gisthi, learned Central Government Standing Counsel appearing for the Respondents.
9. The main contention of the petitioner is that the Criminal Cases that are pending against him from the year 2001, were not considered as an impediment for this Court to order the return of the passport in December, 2004 so as to enable the petitioner to travel to USA. The pendency of those Criminal Cases was also not considered as an impediment for this Court to pass order in W.P.No. 24158 of 2006. According to Mr.K.S.Rajagopalan, learned counsel for the petitioner, the Inspector of Police, Economic Offences Wing as well as the Regional Passport Officer were parties to W.P.No. 24158 of 2006. In the counter affidavit filed to the said writ petition, the Assistant Passport Officer had made a mention about the Criminal Cases pending against the petitioner and had also taken a stand that under Section 6(2)(e) read with sections 10(b) and (e) of the Passport Act 1967, the Passport Authority is entitled to refuse to issue passport. But despite such objections on the part of the Passport Authority, K.Chandru,J allowed the writ petition W.P.No. 24158 of 2006 by order dated 12.09.2006. Therefore, the learned counsel contends that it is not open to the Respondents to take the very same stand as they had taken earlier, especially after such a stand was rejected by this Court.
10. I have carefully considered the above submissions.
11. By the impugned order dated 12.11.2013, the first Respondent rejected the request of the petitioner for the reissue of passport facilities till the disposal of the Criminal Cases, by relying upon Section 6(2)(f) of the Indian Passports Act, 1967. Section 6(2)(f) reads as follows:-
"6. Refusal of Passports, travel documents etc."
(1) ..........
(2) Subject to the other provisions of the 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 of no other grounds:
(a) .......
(b) .......
(c) .......
(d) .......
(e) .......
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before the Criminal Court in India.
12. A careful look at Section 6 would show that it deals with two contingencies. The first is about an endorsement for visiting any foreign country. The second is about the issue of a passport. Both are to be traced only to two clauses namely Clause (b) or Clause (c) of sub-section (2) of Section 5. Clause (b) of sub-section (2) of Section 5 enables the Passport Authority, upon receipt of an application, to issue a passport or travel document with endorsement in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of other countries, after making such enquiry as it considers necessary. Clause (c) of sub-section (2) of Section 5 empowers the Passport Authority to refuse to issue passport or travel document. Sub-section (3) of Section 5 states that where the Passport Authority makes an order under Clause (b) or (c) of sub-section (2), it shall record in writing a brief statement of its reasons and furnish to the person concerned, a copy of the same.
13. Section 7 of the Passports Act, 1967 stipulates that a passport, unless revoked earlier, shall continue in force for such period as may be prescribed. Under Section 8, where a passport is issued for a shorter period than the prescribed period, such shorter period shall be extendable for a further period.
14. Section 10 deals with variation, impounding and revocation of passport. Under sub-section (1) of Section 10, the Passport Authority is empowered to vary or cancel the endorsement on a passport, having regard to the provisions of Section 6(1) or a notification under Section 19. It may also vary or cancel the conditions subject to which a passport or travel document has been issued with the previous approval of the Central Government. Sub-section (1) of Section 10 may be of relevance to the case on hand. Hence, it is extracted as follows:-
10.Variation, impounding and revocation of passports and travel documents (1) The passport authority may, having regard to the provisions of sub-section (1) of section 6 or any notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice.
15. Section 10A deals with the power of the Central Government or any designated officer to suspend any passport, if the passport is likely to be impounded and it is also necessary in the public interest to do so. However, such suspension shall not be for a period exceeding four months. But the period may be extended further by virtue of the proviso to sub-section (1) of Section 10A.
16. A careful look at the entire scheme of the Act would show that the provisions of the Passport Act basically deal with three types of issues such as (1) issue or refusal to issue passports (2) Variation, impounding or revocation of passports and (3) suspension of passports. It is interesting to note that no provision in the Act deals with the renewal of passport. Even Section 8 which deals with extension of the period of passport, covers only cases where a passport is issued for a shorter period than the prescribed period under Section 7. Therefore once a passport expires, upon the expiry of the normal duration stipulated in terms of Section 7 of the Act, a person may have to apply for renewal or extension or re-issue, by whatever name it is called. But that application will be considered only in terms of Section 5. In other words, the terms renewal, extension or re-issue, of a passport after the expiry of the normal period as originally prescribed, should be construed only the issue of passport.
17. As a corollary, once a passport is issued for a particular period, there are only three options open to the Passport Authority namely: (a) Variation of the endorsements made on the passport under Section 10(1) or (b) the impounding of the passport under Section 10(3) and (c) the suspension of the passport under Section 10A.
18. The suspension of a passport can be ordered under Section 10-A only if two conditions are satisfied namely: (a) that the passport is likely to be impounded or revoked under Section 10 (3) (c); and (b) that it is necessary in the public interest to suspend the passport for a period not exceeding four weeks, which can be extended later.
19. Similarly, the impounding or revocation of a passport is possible only if any one of the contingencies stipulated in Clauses (a) to (h) of sub-section (3) of Section 10 are satisfied. If the conditions stipulated in Section 10 (3) are not satisfied, the passport cannot be impounded or revoked.
20. In so far as the variation of the endorsement on passport is concerned, Section 10(1) contemplates variation under two situations. The first is the variation of endorsements of a passport, either with reference to Section 6(1) or with reference to any notification under Section 19. Section 6(1) speaks about activities prejudicial to the sovereignty and integrity of India, detriment to the security of India, prejudice to the friendly relations of India with that country and prejudice to public interest. Section 19 speaks about the notifications issued by Central Government that a foreign country is committing or is suspected of the commission of external aggression against India or a country is engaged in armed hostilities. If the conditions stipulated in Section 6(1) are present or if a notification under Section 19 has been issued, the Passport Authority himself can order variation or cancellation of the endorsements of a passport.
21. The second situation in which the endorsements of a passport can be varied or cancelled is when the Central Government grants previous approval for the same.
22. A careful look at the facts of the case would show that the duration of the passport issued to the petitioner is up to 16.02.2015. No steps have been taken for impounding or revoking the passport under Section 10(3). Since no step is taken for impounding or revoking the passport, the passport cannot even be suspended under Section 10-A. Therefore, if the Respondent wants to deny the petitioner of the benefit of the validity of the passport up to the period stated therein, namely 16.02.2015, the Respondents can only invoke the first limb of Section 10(1). The case of the petitioner is not referable to Section 6(2), since the case on hand is not one for issue of passport or for reissue of passport upon the expiry of the original duration. If the petitioner wants renewal after 16.02.2015, the same may come within the purview of reissue/issue, enabling the Respondents to take recourse to Section 6(2). So long as there is no proposal for impounding or revocation, the case will also not come under Section 10(3).
23. Therefore, I am of the view that the denial of the benefit of the period of validity already stipulated in the passport up to 16.02.2015, without taking recourse to Section 10(1), cannot be sustained. Once the period of validity of the passport is found to be 16.02.2015, such period can be altered only by taking recourse to the power of variation under Section 10(1). Alternatively the first Respondent has to take recourse for impounding or revocation under Section 10(3).
24. Coming to the Criminal Cases faced by the petitioner, it is seen that those Criminal Cases already formed part of the records in the previous writ petition W.P.No.24158 of 2006. The first Respondent had made a mention about the Criminal Cases in that case. Yet, an order was passed by the learned Judge allowing the writ petition on 12.09.2006. The operative portion of the order of the learned Judge reads as follows:-
" 10. This is a matter entirely for the first respondent to decide as to whether the Passport of the petitioner should be renewed or revoked on the grounds which are available under the provisions of the Act and the Rules made thereunder. It is needless to say that every citizen of this country is entitled to get Passport subject to the provisions of the Act and the Rules and the petitioner has already obtained a valid Passport. In the present case, the petitioner is seeking only for renewal of his Passport. Therefore, it is not open to the first respondent to say that it cannot be renewed.
11. Under these circumstances, the first respondent is directed to renew the petitioner's Passport and continue to keep it in the custody of the XI Metropolitan Magistrate, Saidapet, Chennai, and the writ petition is allowed to the extent indicated above. However, there will be no order as to costs.
12. With reference to the other request made by the learned Senior Counsel appearing for the petitioner regarding permission to the petitioner to travel abroad, it is for the petitioner to approach the concerned Court to seek permission to travel abroad and also for return of the Passport for the period to which he is likely to travel abroad."
25. Therefore, in view of the fact that the validity of the Passport now held by the petitioner is up to 16.02.2015, the impugned order taking recourse to Section 6(2) is not proper. So long as there is no proceeding either under Section 10(1) or under Section 10(3), the first Respondent cannot deny the issue of additional book. What the petitioner now seeks is only the issue of additional book, till the period of validity of the existing passport.
26. Therefore, the writ petition is allowed, directing the Respondents to issue additional book or additional sheets to the petitioner so that the validity of the passport already issued up to 16.02.2015 is not curtailed in any manner otherwise than by due process of law. No costs.
Index:Yes 24-09-2014
Internet:Yes
gr.
To
1. The Regional Passport Officer,Chennai, The Government of India,
Ministry of External Affairs, Regional Passport Office,
New No.158, Rayala Towers, Anna Salai, Chennai - 600002.
2. The Superintendent of Police, Economics Offences Wing (II),
Chennai, C 48, II Avenue, TNHB Complex, 3rd Floor,
Anna Nagar, Chennai - 600 040.
V.RAMASUBRAMANIAN, J
gr.
ORDER IN
W.P.No.33546 of 2013
24-09-2014