Madras High Court
Mohamed Noordeen vs The Regional Passport Officer on 11 September, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
W.P(MD)No.21915 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.21915 of 2023
Mohamed Noordeen ... Petitioner
Vs
1.The Regional Passport Officer,
Regional Passport Office,
Bharathi Ula Street,
Race Course Road,
Madurai – 625 002.
2.The Inspector of Police,
Pathamadai Police Station,
Tirunelveli District. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India, praying this Court to issue a Writ of Mandamus, directing
the first respondent to re-issue Passport (renewal) to the petitioner,
based on his application in File Number:MD2075114805123 on the
file of the first respondent within a stipulated time by this Court.
For Petitioner : Mr.Henri Patrick Tiphange
For R1 : Mr.K.Govindarajan
Deputy Solicitor General of India
For R2 : Mr.P.Kottaichamy
Government Advocate
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W.P(MD)No.21915 of 2023
ORDER
The petitioner claims that the passport issued to the petitioner expired on 01.04.2022. He submitted an application for re- issuance of passport on 27.02.2023. Based on that application, the first respondent has called for a report from the second respondent. The second respondent by referring a criminal case, which is pending as against the petitioner in Crime No.98 of 2022 on the file of the Pathamadai Police Station has submitted a report before the first respondent, based on which, the petitioner was directed to clarify with regard to the criminal case pending as against him. The petitioner claims that this criminal case has been registered as if this petitioner has participated in a protest and the case is at the stage of investigation. The first respondent has not considered this explanation offered by the petitioner. Hence, the petitioner is before this Court with this writ petition seeking for a Mandamus directing the first respondent to re-issue the passport to the petitioner, based on his application, dated 27.02.2023. 2/10 https://www.mhc.tn.gov.in/judis W.P(MD)No.21915 of 2023
2.Mr.K.Govindarajan, learned Deputy Solicitor General, who takes notice for the first respondent submits that based on the adverse report received from the second respondent, they have not re-issued the passport to the petitioner.
3. Mr.P.Kottaichamy, learned Government Advocate, who takes notice for the second respondent submits that the petitioner is involved in a case in Crime No.98 of 2022 on the file of the Patamadami Police Station for the offences punishable under Sections 143 & 341 of IPC. The Inspector of Police, Pathamadai Police Station has filed a final report, however, the same has not been taken on file.
4.The learned counsel appearing for the petitioner has relied on the order passed by the learned Judicial Magistrate, Cheranmahadevi in the copy application filed by the petitioner, wherein, it was stated that charge sheet has not been laid so far. 3/10 https://www.mhc.tn.gov.in/judis W.P(MD)No.21915 of 2023
5.This Court considered the rival submissions made.
6.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) 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.” 4/10 https://www.mhc.tn.gov.in/judis W.P(MD)No.21915 of 2023
7.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.
8.Similarly, unless and until the Court takes cognizance of the final report filed by the Investigative Agency, it cannot be termed as a proceedings pending before the Criminal Court. In Re Narsingh Das Tapadia v. Goverdhan Das Partani & Another [(2000) 7 SCC 183], the Hon'ble Supreme Court has observed as follows:-
“8."Taking cognizance of an offence" by the Court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the court for initiating judicial proceedings against the offender in respect of the offence regarding 5/10 https://www.mhc.tn.gov.in/judis W.P(MD)No.21915 of 2023 which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the Code Criminal Procedure such as ordering investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence.”
9.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. ...” 6/10 https://www.mhc.tn.gov.in/judis W.P(MD)No.21915 of 2023
10.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 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.7/10
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11.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.
12.Accordingly, this writ petition is allowed with a direction to the Passport Authority to renew the passport to this petitioner, by considering his application, within a period of twelve weeks from the date of receipt of a copy of this order. No costs.
11.09.2023 NCC :Yes/No Index :Yes/No Internet:Yes vrn 8/10 https://www.mhc.tn.gov.in/judis W.P(MD)No.21915 of 2023 To
1.The Regional Passport Officer, Regional Passport Office, Bharathi Ula Street, Race Course Road, Madurai – 625 002.
2.The Inspector of Police, Pathamadai Police Station, Tirunelveli District.
9/10 https://www.mhc.tn.gov.in/judis W.P(MD)No.21915 of 2023 B.PUGALENDHI, J.
vrn Order made in W.P(MD)No.21915 of 2023 11.09.2023 10/10 https://www.mhc.tn.gov.in/judis