Jammu & Kashmir High Court
Vivek Anand vs Union Of India Through Secretary on 21 November, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Sr. No.38
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No.322/2023
Vivek Anand, Aged 35 years
S/o Sh. Prithvi Raj Anand
R/o Ward No.89, Nowshera, Rajouri,
Jammu & Kashmir 185151.
.....Petitioner/Appellant(s)
Through: Mr. Navneet Dubey, Advocate
Vs
1. Union of India through Secretary,
Ministry of External Affairs, Govt. of
India, New Union Civil Secretariat, New
Delhi-110001
2. The Chief Passport Officer,
Ministry of External Affairs,
PSP, Ministry of External Affairs Room
No.30 D, 2nd Floor Patiala House,
Tilak Marg, New Delhi-110001
3. The Regional Passport Officer,
Regional Passport Office, (Jammu).
Aquaf Trust Market Building,
Gandhi Nagar, Jammu.
4. Passport Officer
(Incharge District Rajouri),
C/o Regional Passport office,
Aquaf Trust Market Building,
Gandhi Nagar, Jammu.
5. Station House Officer, Police Station,
Nowshera, Government of UT of J&K,
Nowshera, District Rajouri
..... Respondent(s)
Through: Mr. Vishal Sharma, DSGI for R-1 to 4
Mr. Bhanu Jasrotia, GA for R-5
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
21.11.2024
01. The petitioner by the present petition, inter alia, seeks a direction upon the respondents to renew-re-issue passport of the petitioner bearing No.J1802153 w.e.f. 11.10.2020 for a further period of atleast five years in terms of Section 7 and 8 of the Passport Act, 1967.
FACTUAL MARTIX
02. In the year 2010, the petitioner was issued a passport bearing No.J1802153, which expired on 11.10.2020. Meanwhile, petitioner got involved in FIR No.47/2017 under Sections 323, 341, 336 RPC and FIR No.48/2018 under Sections 307/436/323/353/427/336/147/148 RPC 03 PDPP Act, both registered at Police Station, Nowshera. On 10.03.2020, the petitioner applied for re-issuance/extension of his passport and also paid the requisite fee of Rs.1500/-The application of the petitioner was assigned ARN NO.19-0016829170 and Reference No.CPAABPONN6. The application of the petitioner for re-issuance/ renewal of his passport was kept on hold.
03. It is stated that on 13.04.2022 the petitioner again applied for reissuance of passport after paying requisite fee of Rs.1500/-. The application was assigned ARN No.22-0005329810 and Reference No.CPABOPKIP7. Vide communication dated 11.05.2022, the petitioner was called upon by respondent NO.3 to produce proper clarification/explanation with respect to the discrepancies observed in reissue application submitted by the petitioner. The discrepancies indicated in the communication are as under:-
2 WP(C) No.322/2023
1. As per records in our system you applied in 2020 and Pvr shows that FIR No.48/2018 is registered against you.
2. Now you have submitted a Court order in current application file in which FIR number is different i.e. 47/2017.
04. It is submitted that the petitioner approached respondent No.5 in order to obtain status of the FIR No.48/2028 through Judicial Magistrate 1st Class, Nowshera and it has been disclosed that the FIR is still pending investigation. The submission of the petitioner is that the contention of the respondents that the passport cannot be issued to the petitioner is not only violative of fundamental rights of the petitioner but is also contrary to the provisions of the Passport Act, 1967.
05. In response to the notice issued, respondent Nos. 1 to 4 have filed their reply, wherein it is stated that the petitioner applied for passport facility in Re-issue category on 14.03.2020 vide File No.JM2076313630622. In the application, petitioner declared that he has not been charged with criminal proceedings nor is there any arrest warrant/summon pending before any Court of law in India against him. On 14.03.2020, the personal particulars form was initiated to SSP, Rajouri for obtaining police report. On 05.04.2021, police verification report was received by the respondent as "not cleared" with the remarks that the petitioner is involved in FIR No.48/2018. A show cause notice was issued to the petitioner on 15.04.2021 for furnishing explanation. Since no reply was received from the petitioner, a reminder was issued on 06.05.2021. It is submitted that on 06.07.2021, an order was received from the Ministry through e-mail for closing all pending files of the year 2020 and accordingly, file of the petitioner was closed on 07.07.2021. The petitioner again applied for 3 WP(C) No.322/2023 passport facility under re-issue category on 19.04.2021. Along with application, petitioner submitted a Court order with respect to FIR No.47/2017, however, as per the police verification report received earlier, the petitioner was shown involved in FIR No.48/2018 whereas the Court order submitted by the petitioner referred to FIR No.47/2017.
06. It is further submitted by the respondents that a show cause notice dated 11.05.2022 was issued to the petitioner seeking his explanation with respect to the difference of FIR number in the police verification report and in the Court order submitted by the petitioner. When no response was received, a reminder was issued to the petitioner, however, no response has been received from the petitioner and instead present petition has been filed without any cause of action.
07. Heard learned counsel for the parties.
Submissions
03. Learned counsel for the petitioner has submitted that in FIR No.47/2017 of Police Station, Nowshera, the petitioner stands discharged vide order dated 10.03.2020 passed in File No.89/Challan by the Court of JMIC, Nowshera and FIR No.48/2018 is still under investigation. He submits that mere registration of a FIR or pendency of investigation is not a ground to refuse or deny renewal of passport to the petitioner. He relied on a Judgment of the Coordinate Bench in WP(C) No.1534/2022 titled Rajesh Gupta v. Union of India and another decided on 23.11.2022.
04. Per contra, Mr. Vishal Sharma, learned DSGI appearing for respondent Nos. 1 to 4 submits that the request of the petitioner for re-issue/renewal of passport has not been rejected and following the mandate of judgment 4 WP(C) No.322/2023 of Rajesh Gupta (supra) the petitioner has been asked to furnish explanation regarding the two different FIRs and their status.
05. Considered the submissions of learned counsel for the parties and perused the material on record.
Analysis
06. The main reason for non-renewal/ re-issue of passport to the petitioner is his involvement in FIR Nos.47/2017 and 48/2018. Vide order dated 11.07.2024, Station House Officer, Police Station, Nowshera was directed to appear along with status of the FIR No.47/2017 and FIR No.48/2018. Regarding FIR No.47/2017 registered at Police Station, Nowshera, order dated 10.03.2020 passed by the Court of JMIC, Nowshera indicates that the petitioner has been discharged and challan stands dismissed.
07. Insofar as FIR No.48/2018 is concerned, Mr. Bhanu Jasrotia, learned GA passed on a status report dated 13.08.2024, which is taken on record. The status report indicates that the FIR No.48/2018 of Police Station, Nowshera is still under investigation and till date Final Report has not been produced before the competent Court of law.
08. Now the question that arises for consideration before this Court is that, whether pendency of investigation in FIR No.48/20218 can be a valid ground to refuse renewal/re-issue of passport in favour of the petitioner. The issue as to when the proceedings can be said to be pending before the criminal Court was considered by the Madras High Court in Venkatesh Kandasamy v. Government of India, Ministry of External Affairs, AIR 2015 Mad 3 and it was held that no proceedings can be said to have been initiated under clause (a) of Section 190 of the Criminal Procedure 5 WP(C) No.322/2023 Code unless cognizance is taken by the Court for proceeding further in the matter.
09. This Court in WP(C) No.1534/2022 Rajesh Gupta v. Union of India and another, after considering the provisions of Section 6 of the Passport Act in light of various decisions rendered by various High Courts, in paragraph No.10 and 16 of the judgment dated 23.11.2022 held us thus:-
"10. Mere registration of an FIR or pendency of investigation by the Investigating Agency is no ground to refuse issue or renewal of passport requested by the applicant. At this stage, when FIR alone is registered and investigation is undertaken by the Investigating Agency, there are no proceedings before a criminal Court. The criminal proceedings commence before the competent Court of criminal jurisdiction only when a final report is laid by the investigating agency before the Court or in case of a private complaint, when the criminal Court of competent jurisdiction takes cognizance and proceeds in the manner provided under the Code of Criminal Procedure. Till such eventuality happens, we cannot say that there are criminal proceedings pending in the Court. If that be the clear and unequivocal position emerging from the scheme of Code of Criminal Procedure, there is not even an iota of doubt that registration of FIR and the investigation taken thereupon by the investigating agency cannot be said to be the proceedings pending before a criminal Court in India to attract disqualification laid down in Clause (f) of Sub Section (2) of Section 6 of the Passport Act."
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"16. Viewed thus, I am of the considered view that the ground on which the request of the petitioner for re-issue of the passport has been rejected is totally untenable and unsustainable in law. The respondents cannot insist upon the petitioner to produce NOC from the Court when there are no criminal proceedings pending in any competent Court of criminal jurisdiction. From the documents on record, it is abundantly clear that there is only an 6 WP(C) No.322/2023 FIR pending investigation against the petitioner and no final report in the matter has so far been submitted to the Court."
09. In view of the above, it is manifest that registration of FIR and the investigation taken thereupon by the investigating agency cannot be said to be the proceedings pending before a criminal Court in India to attract disqualification laid down in Section 6 of the Passport Act. Since FIR No.48/2018, which is stated to be the main cause for non renewal/re-issue of the passport to the petitioner, is still under investigation, the same cannot be said to be the proceedings pending before a criminal Court of India to attract disqualification for issuance of passport.
10. Since the respondents have sought clarification/explanation with regard to the FIR No.48/2018 and now when from the status report filed by respondent No.5, it is cleared that aforesaid FIR is still pending investigation and no Final Report has been laid before the Court, this petition is disposed therehby directing respondents to consider the application of the petitioner for issuance of passport in his favour in "re- issue" category strictly in accordance with the law and mandate of Rajesh Gupta v. Union of India (supra). Respondents are directed to take a decision within a period of one month from the date of receipt of copy of this order.
(Moksha Khajuria Kazmi) Judge Jammu 21.11.2024 Vinod, PS Whether the order is reportable: No Vinod Kumar 2024.11.22 12:56 I attest to the accuracy and 7 WP(C) No.322/2023 integrity of this document