Andhra Pradesh High Court - Amravati
Vagala Venkata Siva Kumar vs The State Of Andhra Pradesh on 2 February, 2021
THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL REVISION CASE Nos.475 and 478 of 2020
COMMON ORDER:-
Challenging the common order dated 20.10.2020 passed in Crl.M.P.No.1685 of 2020 and Crl.M.P.No.1686 of 2020 in C.C.No.2152 of 2020 on the file of the I Additional Chief Metropolitan Magistrate, Visakhapatnam, these two criminal revision cases have been filed.
2. The petitioner, who is A-1 in C.C.No.2152 of 2020 on the file of the I Additional Chief Metropolitan Magistrate, Visakhapatnam has filed Crl.M.P.No.1685 of 2020 under Section 205 of Criminal Procedure Code, 1973 (for short "Cr.P.C.") to exempt him from appearance before the Court below on each adjournment and he may be permitted to be represented by an Advocate on his behalf in the Court. The petitioner also filed Crl.M.P.No.1686 of 2020 under Section 6 (2) (f) of Passport Act, 1967 to grant 'No Objection Certificate' for issuing passport to him.
3. The Court below while dismissing the said applications has referred to the judgment of the Hon'ble Apex Court in Maneka Gandhi Vs. Union of India and another1; judgment of High Court of Chhattisgarh in Abhishek Tiwari Vs. Union of India2 and also the judgment of the Allahabad High Court in Ravindra Nath Bhargav Vs. State of U.P.3 and referred to the provisions of Sections 5 and 6 (2) (f) of Passport Act, 1967. The Court below dismissed the said applications mainly on the ground that if the petitioner is permitted to leave the country, his possibility of returning to India is almost 1 (1978) 1 SCC 248 2 2019 Supreme Chattisgarh High Court 919 = MANU/CG/1116/2019 3 2019 (2) ACR 1196 2 impossible. The Court below felt that the petitioner is not a law abiding citizen and will not attend before the Court as and when required for the reason that the mother and sister, who were shown as A-2 and A-3, though residing in Viskhapatnam within the jurisdiction of the Court, the prosecution could not serve summons on them for the last two years. The Court below further observed that the endeavour of the Court is to see the possibility of spouses for reunion by way of conciliation, which is possible only when both parties are present and accordingly, the Court below did not find any merits in both the petitions and dismissed the same.
4. Learned counsel for the petitioner submits that a complaint was lodged against the petitioner and his family, police after conducting the investigation filed charge sheet for the offences punishable under Section 498-A, 506 of IPC and Section 3 & 4 of Dowry Prohibition Act, 1961. He submits that the petitioner was not aware of the complaint lodged by the defacto complainant and it is his specific contention that he has not married the defacto complainant and he was falsely implicated in the case. He submits that the petitioner has been working in Silver Sky Technology SDN BHD, Malaysia and recently, when the petitioner came to know about registration of complaint, he voluntarily surrendered before the Court, as such the Court cannot draw any interference against him that he is not a law abiding citizen and as far as not able to serve summons on the other accused is concerned, the same cannot be attributed to the petitioner.
5. Learned counsel for the petitioner submits that as the petitioner's contract was renewed, the employer asked him to send his passport for Visa processing. When the petitioner was about to 3 send his passport, the same was damaged due to rain, as such he is constrained to make an application to the passport authorities for issuance of a fresh passport, but since a criminal case is pending against the petitioner, the passport authorities asked him to furnish No Objection Certificate issued by the Court and the Court below without considering all these aspects in its proper perspective, has dismissed the application filed by him. He submits that when it is the specific case of the petitioner that there is no marriage between the parties, the offence under Section 498-A of IPC is not attracted. If the petitioner failed to send his passport and get his contract renewed, he will sustain irreparable loss.
6. Learned counsel for the petitioner relied on the notification issued by the Ministry of External Affairs dated 25.08.1993 under Section 22 (a) of Passport Act, 1967 exempting citizens against whom proceedings in respect of an offence alleged to have been committed by them or pending before criminal Court in India, if they produce orders from the Courts concerned permitting them to depart from India from the operations of provisions of Section 6 (2) (f) of Passport Act, 1967. He submits that as per the circular it is the discretion of the Court to grant permission to leave India. The petitioner alone is the earning member of the family and if he loses his job, it is very difficult for him to maintain family. He submits that he is a law abiding citizen, he will comply with any of the conditions imposed by this Court.
7. Learned counsel for the petitioner relied on the judgment of the Allahabad High Court in Madhu Tyagi and others Vs. State of U.P.4 and submits that the passport or travel document of a person who is 4 MANU/UP/0746/2019 4 facing trial can be refused by the authority concerned during the pendency of criminal case, but there is no statutory bar for giving no objection by the Court concerned. He submits that no straight jacket formula can be laid down regarding issuance of permission or giving no objection by the Court concerned. It is always the discretion of the Court concerned and depend upon the facts and circumstances of each case, act and conduct of the accused as well as nature of alleged offence committed by him and stage of trial. He submits that sometimes, on account of enmity or ill-will, a person may be falsely implicated in cases to settle personal scores, wherein if the Court fails to exercise discretion, the person / accused will be put to hardship and injustice.
8. Learned counsel for the petitioner also relied on the judgment of the Madras High Court (Madurai Bench) in A.Suresh Kumar Vs. The Passport Officer, Regional Passport Office5, wherein the Madras High Court placed reliance on the judgment of the Bombay High Court in Deepak Dwarkasingh Chhabira Vs. Union of India and another6, wherein it was held thus:
"10. In view of the aforesaid notifications by the Central Government, it is clear the that the citizens against whom criminal cases are pending are made exempt from the operation of Section 6(2)(f) provided they produce orders from the concerned Court permitting them to travel abroad subject to the terms and conditions mentioned in the notifications. In other words, an application of passport is not liable to be refused on the ground of pendency of criminal case if the applicant obtains permission from the concerned Criminal Court for travelling outside India. The passport authority, therefore cannot reject the application for passport mechanically on the ground of pendency of criminal case against the application. It will be the duty of the passport authority of bring the relevant notification to apply to concerned Criminal Court for permission to the travel abroad. If the applicant obtains such permission from the Criminal Court where his case of pending, the passport of authority will be duty bound 5 MANU/TN/1157/2016 6 MANU/MH/0029/1997 = AIR 1997 Bombay 181 5 to issue the passport in terms of the order of the Criminal Court subject to the conditions of the notification. In the present case the passport authority has failed to bring the relevant notification to the notice of the applicant inspite of the fact that the application was pending before the authority for more than one- and-half years. In fact it is doubtful whether the passport authority himself was aware of the notification granting exemption to the citizens form the operation of Section 6(2)(f). It is matter if regret that applications are kept pending by the passport authority for such a long time particularly, when it affects the fundamental right of the citizen. At no point of time the passport authority had informed the petitioner that he was entitled to passport subject to orders of the Criminal Court. The passport authority has also failed to give information or particulars about the pending criminal case. It is an admitted position that till today the petitioner is not served with the summons of the pending criminal case. In such a situation, it was all the more necessary for the passport authority to inform the petitioner of his right to apply to the Criminal Court for permission to travel abroad. In my opinion, it is necessary to issue specific directions to the passport authority in order to ensure that the citizens' application for passport are not unnecessarily delayed on account of pending criminal cases.
Accordingly, it is directed that in all cases covered by Section 6(2)(f), the passport authority shall forthwith inform the applicant about his right to apply to the concerned Criminal Court for permission of travel abroad in terms of the notification dated 25th August, 1993. In case the applicant demands a copy of the notification, same shall be supplied by the passport authority subject to payment of charges. Needless to mention that it will be open for the applicant to approach the Criminal Court, where criminal case against him is pending, for permission to travel out of India. Even if he has not received summons from the Criminal Court, it will be open for the applicant to apply to that Court for a limited purpose of issuing the necessary orders for grant and/or renewal of passport. Considering the fact that the matter involves the fundamental right of the applicant, the concerned Court shall decide such application as expeditiously as possible and preferably within four weeks from the date of receipt of such application, after notice to the prosecution. In case of Criminal Court passes an order for issuance of passport, the passport authority shall forthwith issue the passport to the applicant subject to the terms and conditions mentioned and notification but without making any endorsement on the passport about the pending criminal case."
9. Per contra, learned Public Prosecutor would submit that though the crime pertains to the year 2018, none of the accused can 6 be apprehended, as such there is delay in conducting investigation. In fact, the family members of the petitioner though available in Visakhapatnam, they could not serve summons and that itself shows that the petitioner and other accused on one pretext or other are trying to delay the proceedings in this case. He submits that if the petitioner is allowed to leave the country, he may not return and the Court below has rightly exercised its discretion and dismissed the application filed by the petitioner.
10. The petitioner after filing the criminal petition has filed an application to implead the defacto complainant as respondent, this Court by order dated 31.12.2020 has ordered notice to proposed respondent and also permitted the learned counsel for petitioner to take out personal notice. Learned counsel for the petitioner submits that he has taken out personal notice and the same was served on the proposed respondent and he has also filed proof of service. But none appears on behalf of the defacto complainant.
11. Heard the learned counsel on either side and perused the record. The Court below has dismissed the application on the ground that for amicable settlement between the parties, the presence of the petitioner is necessary and secondly for the reason that the notices could not be served on the other accused, in spite of the best efforts made by the prosecution, as such the Court below came to the conclusion that if the petitioner is allowed to go abroad, the possibility of returning to India is almost impossible.
12. In this case the crime was registered for the offence under Section 498-A of IPC in the year 2018. It is the specific case of the petitioner that after coming to know about the criminal case, he 7 voluntarily came to India and surrendered before the Court and now as the petitioner's passport was damaged, he was constrained to file an application under Section 6 (2) (f) of Passport Act, 1967 seeking to grant no objection certificate from the Court. What was the reason for non serving the summons on the other accused is not at all discussed by the Court below.
13. Section 6 of Passport Act, 1967 reads thus:
6. Refusal of passports, travel documents. etc.--
(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any country under clause (b) or 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 may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;
(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;
(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;
(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.
(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;
(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;8
(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.
14. As per Section 6 (2) (f) of the Passport Act, 1967, the passport authority shall refuse to issue passport or travel document for visiting any foreign country, if criminal proceedings are pending against the applicant in India. A bare reading of the Passport Act, 1967 reveals that there is no absolute bar for issuance of passport. As per Section 6 (2) (f) of the Passport Act, 1967 when the passport authority refuses to grant passport, the Court while exercising its discretion has to look at the facts and circumstances of each case. Mere pendency of criminal case cannot be a reason to refuse to grant passport. In the present case, the petitioner has approached the Court when his passport was damaged for issuance of no objection. Admittedly, the petitioner is working in Malaysia and if he has to stay back in India till the completion of trial, which takes considerable time, the career of the petitioner will definitely be effected. Particularly, in this case the petitioner denies the factum of marriage itself. In case the petitioner is acquitted in the criminal case, his loss cannot be compensated. In these circumstances, this Court deems it appropriate to direct the passport authorities to renew the passport of the petitioner on certain conditions.
9
15. Accordingly, the criminal revision cases are allowed and the common order dated 20.10.2020 passed in Crl.M.P.No.1685 of 2020 and Crl.M.P.No.1686 of 2020 in C.C.No.2152 of 2020 on the file of the I Additional Chief Metropolitan Magistrate, Visakhapatnam is set aside. The passport authorities shall renew the passport of the petitioner for a period of nine months from the date of renewal. The petitioner shall furnish bank guarantee for a sum of Rs.5,00,000/- (Rupees five lakhs only) before the trial Court. The petitioner shall appear before the trial Court whenever his presence is required by the Court and on other occasions, the petitioner can be represented by the advocate.
As a sequel, all the pending miscellaneous applications are closed.
__________________________________ JUSTICE LALITHA KANNEGANTI 2nd February, 2021 PVD 10 THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI Allowed CRIMINAL REVISION CASE Nos.475 and 478 of 2020 2nd February, 2021 PVD