Bombay High Court
Cyrus Keki Balsara vs The Union Of India Through The Office Of ... on 8 April, 2024
Author: G.S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-OS:6235-DB 10 WPL1576-24.DOC
Mohite
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA ORDINARY ORIGINAL CIVIL JURISDICTION
TUSHAR
MOHITE
Digitally signed by
WRIT PETITION (L) NO.1576 OF 2024
TRUSHA TUSHAR
MOHITE
Date: 2024.04.16
18:44:46 +0530
Cyrus Keki Balsara ... Petitioner
Versus
The Union of India and Anr. ...Respondents
Mr. Vivek Kantawala a/w Mr.Amey Patil i/b Mr.Vivek M. Sharma for the
Petitioner
Ms. Utkarsha Wadekar i/b Mr.Shreyas Deshpande for the Respondent
Nos.1 and 2
Ms. Jasmine Gandhi for the Intervenor
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 8th April, 2024
_______________________
Oral Judgment: (Per G.S. Kulkarni, J.)
1. This petition, under Article 226 of the Constitution of India, has prayed for the relief against the respondent no.2, the Regional Passport Office, Mumbai, to issue a fresh passport on the basis of Online Application form submitted by the petitioner on 28 th August, 2023 file No.BO3077935196023 and ARN (Application Reference) No.23-0007669720. This is the only relief as sought for in the petition. We note prayer clause (a) which reads as under:
"(a) That this Hon'ble Court may be pleased to Order and direct Respondent No.2 to issue a fresh passport on the basis of the Online Application form submitted by the Petitioner on 28th August, 2023 on the file No.BO3077935196023 and ARN (Application Reference) No.23-0007669720."Page 1 of 17
8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC
2. It is the case of the petitioner that he was issued a passport on 28 th May 2013, which was to expire on 27 th May 2023. On 16th May 2023,the petitioner made an application for 'Re-issuance' of passport. It is contended that, thereafter, on 28th August 2023, the petitioner filed an application for re- issuance of the passport. On such application of the petitioner for re-issuance of the passport, a notice dated 30th November 2023 was issued to the petitioner calling upon the petitioner to furnish an explanation, in view of the adverse police verification report which was received by the respondent no.2 that there was a criminal case registered against the petitioner at the L.T.Marg Police Station, being C.R. No.265/2006, under Sections 324 and 506 of the Indian Penal Code, and in pursuance of such complaint criminal proceedings being C.C.No.PW/4700747/2011 were pending against the Petitioner, at the 28th Court, Killa Court,Mumbai. Such notice also stated that there was another complaint registered against the petitioner at the Matunga Police Station, being C.R.No.04/2007, alleging offences under Sections 324, 498A, 503, 506, 34 of the Indian Penal Code, which was pending trial before the 30 th Court Kurla, Mumbai, being C.C.No.25 /2008. The petitioner was called upon to provide an explanation within 30 days regarding the circumstances under which the petitioner had suppressed such material information in the passport application. It was informed that in the case of non response within the specified period, the petitioner would be denied the passport. Also the Page 2 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC petitioner was called upon to send the self attested documents as set out in paragraph 3 of the said notice.
3. The petitioner responded to the said notice by his reply dated 11 th December 2023. He contended that, when he applied for the passport in the year 2013, no such query was raised of any such criminal proceedings pending against him and he was granted a passport. He also stated that he had made another application dated 28th August 2023 wherein he had set out the details of the criminal proceedings pending against him. He stated that apart from the said criminal proceedings which were pending trial, there was a third FIR filed against him, being FIR No.356/2011, under Sections 324, 109 and 34 of the Indian Penal Code at the Shivaji Park Police Station, Dadar. In this regard, he had also approached the criminal court for obtaining bail, which was granted to him by an order passed by the learned Metropolitan Magistrate. Accordingly, it was submitted by him that this clarification should suffice for respondent no.2 to re-issue passport to the petitioner. It is also stated by the Petitioner that his passport expired on 27th May 2023.
4. There is a reply affidavit filed on behalf of respondent nos.1 and 2. In the reply affidavit, the stand taken by the respondents is primarily on the ground of petitioner not being entitled for re-issuance of passport for the reason that the petitioner has not obtained an appropriate order from the Page 3 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC criminal court as required under notification dated 25 th August 1993 issued by the Ministry of External Affairs in exercise of the powers conferred by clause
(a) of Section 22 of the Passports Act, 1967 ("Passport Act").
5. The case of the respondent no.2 is that Section 6(2)(f) specifically provides that 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 grounds as set out in Section 6(2). One of the clauses is Clause(f) of Section 6(2) which is to the effect that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India.
6. It is thus submitted that the restriction as provided under Section 6(2)(f) has been diluted by issuance of a notification dated 25 th August 2023 wherein the Central Government, being of the opinion that it is necessary in public interest to do so, exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them before a criminal court in India are pending, if they produce orders from the court concerned permitting them to depart from India, subject to the conditions mentioned in the said Notification.
7. It is thus submitted that, once there was no dispute that there were criminal cases which were pending against the petitioner, in such event, the Page 4 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC notification dated 25th August 1993 would apply and the petitioner would become entitled for re-issuance of passport only after he obtains an order from the concerned criminal court in the pending cases.
8. We have heard the learned counsel for the parties. We have perused the documents on record.
9. At the outset, we may observe that this is a case where the petitioner has applied for re-issuance of passport. Thus, necessary provisions of the Passport Act are section 5, which provide for Applications for passports, travel documents, etc., and section 6 of the said Act, which provide for refusal of passports, travel documents, etc., would become applicable. It would be necessary to note the said provisions which read thus:
5. Applications for passports, travel documents, etc., and orders thereon-
(1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by [Such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents].Page 5 of 17
8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC Explanation.- In this section, "named foreign country"
means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf. (1-A) An application for the issue of-
(i) a passport under this Act for visiting a named foreign country; or
(ii) a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section, may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed.
(1B) Every application under this section shall be in such form and contain such particulars as may be prescribed.] (2) On receipt of an application 3[under this section], the passport authority, after making such inquiry, if any. as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,-
(a) issue the passport or travel documents with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or
(b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to Page 6 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC make an endorsement in respect of the other country or countries; or
(c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement.
(3) Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy.
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 foreign country under clause (b) or clause (c) of sub- section (2) of section 5 on any one or more of the following grounds, and 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;Page 7 of 17
8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC
(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; Page 8 of 17
8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC
(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."
(Emphasis supplied)
10. The facts of the case as noted by us clearly depict a situation that the application of the petitioner are hit by the provisions of section 6(2)(f) which we have underscored, for the reason that there are criminal proceedings pending against the petitioner. Hence the Petitioners would be liable for refusal of the Passport.
11. The application of the petitioner is for re-issuance of the passport. The Form for re-issuance of the passport is specified in Schedule III Part-I of the Passport Rules, 1980 being a common form for "new passport/re-issue/replacement of lost/damaged passport". Thus, once the case of Page 9 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC the petitioner fell under section 6 (2)(f), the passport authority would be empowered to refuse to issue a passport to the petitioner on the ground that there are criminal proceedings pending against him before the criminal court qua the offences alleged to have been committed by the petitioner. We, however, note that it is the specific case of the respondents that, despite such criminal proceedings pending against the petitioner and the specific power under section 6(2)(f) conferred upon the passport authority to refuse re- issuance of the passport, nonetheless the petitioner's application for re-issuance can be considered provided he applies to the criminal courts where the cases are pending and obtains an order in terms of what has been provided for in the notification dated 25th August 1993, the contents of which reads thus:-
"MINISTRY OF EXTERNAL AFFAIRS NOTIFICATION New Delhi, the 25th August, 1993 G.S.R. 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. G.S.T. 298(E), dated 14th April, 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizen of India against whom proceeding in respect of an offence alleged to have been committed by them are pending before the 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 Act subject to the following conditions namely:-
(a ) the passport to be issued to every such citizen shall be issued -Page 10 of 17
8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC
(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;
(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 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; or
(iv) if such order gives permission to travel abroad for a period ex- ceeding one year, and does not specify the validity of the pass-port, 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) and (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 a fresh court order specifying a further period of validity of the passport or specifying a period for travel abroad;
(d) the said citizen shall give 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."
(emphasis supplied)
12. Mr.Kantawala would submit that the Notification dated 25 th August 1993, would not be applicable to the petitioner's case for the reason that the Page 11 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC application of the petitioner is for renewal of the passport. In other words, his submission is that the notification would apply only in a case where a fresh passport is required to be issued. He submits that the petitioner is thus, not required to apply to the criminal court and obtain an order in terms of the notification. In support of his submission, Mr.Kantawala relies on an order passed by a Coordinate Bench of this Court in the case of Abbas Hatimbhai Kagalwala vs. State of Maharashtra and Another.1 It would be appropriate to note the order which reads thus:
"1. The Petitioner had applied for renewal of the Passport. Said application is not being entertained for the reason that the Petitioner should obtain a permission from the Court where a criminal case is pending against the Petitioner.
2. Learned Counsel for the Petitioner submits that for renewal of the Passport, permission from the Court where a criminal case is pending against the Petitioner, is not necessary. If a criminal case is pending, then the only limitation would be, the Petitioner can not travel abroad without the permission from the Court where a criminal case is pending against the Petitioner. He relies upon order passed by the Apex Court in Criminal Appeal No.1342/2017 dated 27.9.2021.
1 (2022) SCC Online Bom 1992 Page 12 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC
3. Learned Counsel for the Union relies upon Notification dated 25.8.1993 and Section 6.2 (f) of the Passport Act, 1967, to conclude that the Petitioner has to obtain a permission of the Court where criminal case is pending against the Petitioner for the purpose of issuance of the Passport. It will be a case of issuance of the Passport and not renewal of the Passport.
4. It is the case of the Petitioner that validity of the Passport came to an end in the year 2017. The Petitioner applied for renewal and said application is pending for more than 4 years. It is also a fact that a criminal case is pending against the Petitioner u/s 420, 465, 467 r/w 120-B of the Indian Penal Code.
5. In view of the fact that petitioner is already issued a Passport earlier and the Petitioner would be seeking renewal of the Passport and the said application is pending with the Respondent, so also, considering the Order passed by the Apex Court in Criminal Appeal No.1342/2017 (supra) we pass the following order.
Order
i) The Respondent shall process the application of the petitioner for renewal of Passport without insisting for permission of the Court, where a criminal case is pending against the Petitioner. If the Petitioner is travelling abroad, Page 13 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC then the Petitioner would be required to seek permission from the Court where criminal case is pending.
ii) Decision shall be taken as observed above, within 2 months.
iii) The impugned communication is quashed and set aside.
iv) If as per procedure on-line application is required to be made, the same shall be made by the Petitioner.
6. The petition is disposed of.
7. No costs."
13. Referring to the above order, Mr.Kantawalla submits that, in a case where criminal proceedings were pending, this Court had taken into consideration the orders passed by the Supreme Court in the case of Vangala Kasturi Rangacharyulu vs. Central Bureau of Investigation 2 to hold that the application of the petitioner therein for renewal of passport needs to be taken forward without insisting for permission of the court where the criminal case was pending, in view of the fact that petitioner was already issued a passport earlier and that the petitioner was merely seeking renewal of the passport. However, Mr.Kantawalla is not in a position to show as to how the said order is passed by this Court which is passed purely relying on the decision of the Supreme Court in Vangala Kasturi Rangacharyulu (Supra), is applicable and relevant to the facts of the present case.
14. In the case of Vangala Kasturi Rangacharyulu (Supra), there was a conviction of the appellant therein, wherein the appeal was dismissed by the 2 Criminal Appeal No.1342 of 2017 dated 27th September 2021 Page 14 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC High Court and against such orders passed by the High Court, petitioner had approached the Supreme Court where the appeal of the petitioner was pending. In this factual scenario, the Supreme Court considered the provisions of Section 6(2)(e) and not 6(2)(f) of the Passport Act. As under the provisions of Section 6(2)(e), the passport authority could refuse to issue a passport if there was a conviction and a sentence of imprisonment for a period not less than two years, and since the appellant therein was sentenced only for one year, the Supreme Court, applying the provisions of section 6(2)(e), held that the passport authority could not have refused grant of a passport on the ground of pendency of the criminal appeal. Hence, the Supreme Court passed the said order on the basis of the provisions of Section 6(2)(e) and did not deal with Section 6(2)(f). It would be appropriate to note the orders passed by the Supreme Court in Vangala Kasturi Rangacharyulu (Supra) which reads thus:
"(2) ......
(i) .....
The refusal of a passport can be only in case where an applicant is convicted during the period of 5 years immediately proceeding the date of application for an offence involving moral turpitude and sentence for imprisonment for not less than two years.
Page 15 of 17
8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC Section 6.2 (f) relates to a situation where the applicant is facing trial in a criminal court.
Admittedly, at present, the conviction of the appellant stands still the disposal of the criminal appeal. The sentence which he has to undergo is for a period of one year. The passport authority cannot refuse the renewal of the passport on the ground of pendency of the criminal appeal."
15. The present case is certainly not a case which would fall under the provisions of Section 6(2)(e) of the Passport Act as there is no conviction. It is a case falling under the provisions of sub-section (2)(f) of section 6 where the criminal proceedings are pending. Thus the reliance of Mr.Kantawala on the decision of Vangala Kasturi Rangacharyulu (Supra) as also on the order of the Division Bench in the case of Abbas Hatimbhai Kagalwala (Supra) which is an order solely relied on, would not assist the case of the petitioner which is a case for re-issuance of the passport.
16. Further, it appears that when the petitioner says that his application is for renewal of a passport, it is a misnomer, as the Act and the rules provide for re-issuance of a passport after the same expires. As the Passport Act does not contain any separate provision for renewal of a passport as the prescribed form Page 16 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 ::: 10 WPL1576-24.DOC also provides for re-issuance, we have not been shown any provision, otherwise.
17. In the light of the above discussion, we accept the contention raised on behalf of the respondents that the petitioner's case falls under the provisions of section 6(2)(f) and also stands covered by the notification issued by Central Government dated 25th August 1993. In these circumstances, the petitioner would be required to make applications to the criminal courts where the cases are pending for re-issuance of a passport. We thus, find that the relief as prayed for by the petitioner in the present proceedings, cannot be granted.
18. We however, keep open the petitioner's rights to make application to the appropriate criminal courts so as to obtain orders in terms of the notification dated 25th August 1993.
19. All contentions in that regard are expressly kept open.
20. Petition stands disposed of. No costs.
21. Needless to observe that, if the petitioner makes such applications, the petitioner is at liberty to move the court for an early hearing in the event of any urgency is shown by the petitioner to travel abroad. (FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.) Page 17 of 17 8 April, 2024 ::: Uploaded on - 16/04/2024 ::: Downloaded on - 26/04/2024 08:08:14 :::