Madhya Pradesh High Court
Dr.Ajay Bose vs The State Of Madhya Pradesh on 5 September, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 1916/2009
Dr. Ajay Bose
Vs
State of Madhya Pradesh
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Shri Gaurav Mishra, learned counsel for the petitioner.
Shri Shard Singh Baghel, learned P.L. for the respondent.
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ORDER
(05/09/2019) Heard on I.A. No. 14126/19 as well as I.A. No. 15816/19, applications for taking additional documents on record.
2. On due consideration, both the applications are allowed and the documents are taken on record.
3. Now heard on I.A. No. 11608/19, an application to direct the passport authority for issuing passport to the petitioner.
4. The petitioner has been convicted for the offence punishable under section 304-A of IPC by the Trial Court vide judgment dated 22.12.2007 and sentenced to undergo R.I. for 2 years with fine of Rs. 5000/-. The learned Appellate Court has also affirmed the findings of trial Court vide judgment dated 04.11.2009.
5. Learned counsel for the petitioner submits that by filing this instant revision petition, petitioner has challenged the judgment passed by Trial Court as well as Appellate Court. The petitioner has also filed an application for suspension of sentence and grant of bail 2 Cr.R. No. 1916/2009 and vide order dated 30.11.2009, same was allowed and petitioner was released on bail. Petitioner has applied an application before passport authority for issuing a passport but same was not considered by the authority due to pendency of this present petitioner.
6. He further submits that this petition is pending since 2009 and final hearing of this case may take more time. The central Government has issued a notification by which no objection certificate from Court is required for issuance of passport. In support of his case he has annexed the letter issued by Recessional Passport Officer by which, the officer has requested to produce either the Court acquittal order or the NOC from this High Court as per notification i.e. GSR 570(E). With the aoresaid he prays for allowing this application.
7. On the other hand, learned counsel for State submits that the petitioner is a convicted person and if he is permitted to take passport and if he go out from the country, there is possibility of his abscond. Apart from that, under the passport Act as well as Cr.P.C. there is no such provisions for issuing any NOC in respect of convicted person. With the aforesaid submission he prays for dismissal of this application.
8. Heard both the parties and perused the record.
9. To decide the application filed by the appellant, it would be appropriate to examine legal proposition first, thereafter only the circumstances can be considered. Under the Passport Act 1967, the 3 Cr.R. No. 1916/2009 relevant provision are provided under clause (e) and (f) of sub Section 2 of Section 6 of the Act. The relevant provisions are set out below:-
"6. Refusal of passports, travel documents, etc.-
(1).xxxxxxxxx-xxxxxxxxx (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) xxxx xxxx
(b) xxxx xxxx
(c) xxxx xxxx
(d) xxxx xxxx
(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:
(f) that proceedings in respect of an offence alleged to have committed by the applicant are pending before a criminal court in India;"
10. Bare reading of the aforesaid provision, it appears that Clauses (e) and (f) refer to different situations. Clause (f) is applicable only in cases where criminal proceedings are pending in respect of an allegation of an offence. Clearly, the said clause is inapplicable where the criminal proceedings have completed and resulted in a conviction and the offence alleged to have been committed has been established. Clause (e) of Section 6(2) of the Act relates to a case where an applicant has been convicted of an offence involving moral turpitude and has been sentenced in respect thereof to an imprisonment for not less than two years. It is also relevant to mention that the Clause (e) is applicable only for a period of five years after such conviction. 4 Cr.R. No. 1916/2009
11. Under Section 22 of Passports Act, the Central Government has the power to grant exemption from the application of provisions of Passports Act. Section 22 of the Passports Act reads as under:-
"22. Power to exempt-Where the Central Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette and subject to such conditions, if any, as it may specify in the notification,-
(a) exempt any person or class of persons from the operation of all or any of the provisions of this Act or the rules made there under; and (b) as often as may be, cancel any such notification and again subject, by a like notification, the person or class of persons to the operation of such provisions.
12. Vide notification dated 25.08.1993 - GSR 570 (E), the Central Government has exercised the aforesaid powers and issued a notification. According to petitioner, the said notification would applicable and the petitioner entitled to get a passport, provided an NOC is issued by the concerned Court before which criminal proceedings against the petitioner is pending. The said notification is set out below:-
"Ministry of External Affairs Notification New Delhi, the 25thAugust, 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.R. 298(E) dated the 14thApril 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the Court concerned permitting them to depart from India, from the operation of the 5 Cr.R. No. 1916/2009 provisions of clause (f) of sub- Section (2) of Section 6 of the said Act, subject to the following conditions, namely:-
(a) The passport to be issued to every such citizen shall be issued--
(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; or (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 exceeding one year, and does not specify the validity of the passport, then the passport shall be issued for the period of travel abroad specified in the order.
(b) Any passport issue in turms of (a) (ii) and (a)(iii) above can be further renewed for one year at a time, provided the applicant has not traveled abroad for the period sanctioned by the court and provided further that, in the meantime. The order of the court is not canceled 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 validty 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.
13. Reading of the said notification indicates that scope is limited to exempt persons from the operation of Clause (f) of sub- section (2) of Section 6 of the Passports Act. The opening paragraph of the said notification makes it clear that it only exempts citizens against whom proceedings, in respect of an offence alleged to have been committed by them, are pending before a Criminal Court in India.
6Cr.R. No. 1916/2009
14. In the present case, petitioner has been convicted under the offence of Section 304-A I.P.C. and sentenced to two years R.I. He has also preferred an appeal which was dismissed by Appellate Court. Although he has preferred this revision petition against his conviction but the provision of Passport Act under Section 6(e) says that the passport authority shall refuse an application for issuing passport, if the petitioner has been convicted by the Court for any offence involving moral turpitude and he has been sentenced to imprisonment for not less than two years. The notification dated 25.08.1993, indicates that it comes in effect in relation to provision of clause (f) of sub Section 2 of Section 6 whereas the case of present petitioner falls under the purview of clause (e) of sub Section 2 of Section 6 of the Passport Act. Therefore, the notification dated 25.08.1993 has no application in this case. It is also relevant to note that the petitioner has not produced any document which shows his need to get passport.
15. From the aforesaid discussion, this Court of the opinion that under the Passport Act as well as Cr.P.C. there is no such provisions to grant NOC by the Criminal Court in respect to convicted accused.
16. It is also relevant to observe that in terms of Section 6(2)
(e) of the Passport Act, a passport can be denied to a convicted person, if he has been convicted of an offence at any time during the period of five years preceding the date of application for a passport. The petitioner would be at liberty to make an application for a 7 Cr.R. No. 1916/2009 passport under the provision of 6(2)(e) after fulfilling its conditions. Needless to say that if such application is made, the authority shall decide the same in accordance with law without getting prejudice by order of this Court.
17. Accordingly I.A. No. 11608/19 is dismissed.
18. List the case for final hearing in due course.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.09.07 12:44:09 +05'30'