Madras High Court
Riazlee vs The Passport Officer on 27 May, 2010
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 27/05/2010 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM Writ Petition (MD)No.6623 of 2010 and M.P.(MD) No.1 of 2010 Riazlee .. Petitioner Vs The Passport Officer, Madurai Passport office, Madurai. .. Respondent Prayer Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, directing the respondent to issue the petitioner his renewed passport vide file No.MDUE 00116810. !For Petitioner ... Mr.R.Venkateswaran ^For Respondent ... Mr.A.Uthaman Senior Panel Counsel for Central Government * * * * * :ORDER
The prayer in the writ petition is for issuance of a writ of Mandamus, to direct the respondent to issue the petitioner, his renewed passport vide file No.MDUE 00116810.
2. According to the petitioner, he was issued a passport by the respondent, then at Trichy, which was valid up to the year 2007 and in the year 2007, he applied for another passport and the same was also issued and in August 2008 the passport was renewed and it is valid up to August 2010. On 28.01.2010, the petitioner applied for renewal of his passport by surrendering his existing passport. However, the respondent failed to renew the passport on the ground that a criminal case is pending against the petitioner. According to the petitioner, he is innocent and has not committed the alleged offence and by refusing to renew his passport his employment card given by Singapore Government would lapse and as he cannot travel to Singapore, on the above ground, the petitioner has filed the present writ petition.
3. The respondent has filed a counter affidavit stating that the petitioner applied for re-issue of passport against his old passport dated 07.08.2008 issued by the High Commission of India, Singapore. The matter was referred to the Superintendent of Police, Ramanathapuram for verification of character and antecedence under Section 5(2) of the Passports Act, 1967. The Superintendent of Police, Ramanathapuram, in his report, has stated that the petitioner is involved in a criminal case in Crime No.200/2002 on the file of the Kenikarai Police Station for the offence under Sections 147, 148, 241, 323, 324 and 302 I.P.C. and he is the fifth accused in the said case and it is pending trial before the learned Additional District and Sessions Judge (FTC), Ramnad in S.C.No.91 of 2005 and the Superintendent of Police has not recommended for issue of passport. It is further stated in the counter affidavit that once the criminal case is over and after the petitioner is acquitted, the personal particulars form of the petitioner will be sent to the Superintendent of Police, Ramanathapuram for re-verification and based on clear report recommending issue of passport, his application will be considered. Therefore the respondent has prayed for dismissal of the writ petition.
4. Heard the learned counsel for the petitioner as well as the learned Senior Panel Counsel for Central Government appearing for the respondent.
5. The legal issue as to whether the respondent can refuse to renew a passport on the sole ground that a criminal case is pending is no longer res integra. The Hon'ble Supreme Court in the case of Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597, considered the constitutional validity of Section 10(3)(c) of the Passport Act was considered. The Hon'ble Supreme Court upheld the validity of Section 10(3)(c) of the Act and it was held that the procedure contemplated by Article 21 of the Constitution of India must answer the test of reasonableness in order to be in conformity with the Article 14 of the Constitution of India and such procedure must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise it should be no procedure at all and the requirement of Article 21 of the Constitution would not be satisfied. Thereafter, the Central Government in exercise of the powers conferred under Section 22(a) of the Act issued a notification dated 16.08.1979 exempting citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before any 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 certain conditions contained in the notification.
6. Subsequently another notification dated 25.08.1993 came up to be issued substituting the earlier notification and the effect of such notification was considered by the Bombay High Court in Deepak Dwarkasingh Chhabria Vs. Union of India reported in AIR 1997 BOMBAY 181, and it was held as follows:
"9. By the notification dated 25th August, 1993, the earlier notification was substituted granting exemption to the citizens 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 order from the Court concerned permitted them to depart from India, from the operation of the 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 of one year;
(iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period of 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 issued in terms of (a)(ii) and (a)(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, 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 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.
10. In view of the aforesaid notification by the Central Government, it is clear 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 to bring the relevant notification to apply to the concerned Criminal Court for permission to travel abroad. If the applicant obtains such permission from the Criminal Court where his case is pending, the passport authority will be duty bound to issue the passport in terms of the order of the Criminal Court subject to the conditions of the notification."
7. The judgment of the Bombay High Court was followed by the Gujarat High Court in Dhiren Baxi Vs. Regional Passport Officer, Ahmedabad reported in AIR 2003 GUJARAT 108 and the Hon'ble Gujarat High Court issued the following directions:
10. Considering the aforesaid notification issued by the Central Government, as well as considering the judgment of the Bombay High Court, in my view, this petition is required to be allowed by giving opportunity to the petitioner to approach the concerned Magistrate with an appropriate application for permitting him to go abroad for a particular time limit. If the concerned Magistrate permits the petitioner to go abroad for a particular period on the basis of such order, it will be open for the petitioner to request the passport authority to grant him passport for a limited period, during which he is permitted to go abroad. The petitioner may accordingly approach the concerned criminal court, with a prayer to permit him to go abroad and if any such application is preferred, the concerned criminal court may decide such application in accordance with law. If the concerned criminal court, before whom the criminal cases are pending, permits the petitioner to go abroad, the passport authority may pass appropriate order in the matter of issuing passport to the petitioner in terms of the order of the criminal court and subject to the conditions laid down by the Notification. As observed by the Bombay High Court, the passport authority, in future cases of a similar nature, may inform the applicants, against whom any criminal case is pending, about the Notification of the Central Government and may inform such applicant that they may approach the concerned and if any such order is passed by the Magistrate, permitting such applicant to go abroad, the passport authority may dispose of such applications in view of the Notification and in view of the provisions of the Passport Act.
It is clarified that in case the criminal court permits the petitioner to go abroad, the passport authority shall act on the basis of such report for the purpose of issuing passport. The passport may not be refused solely on the ground of pendency of the present criminal cases in case the Magistrate so permits. It is clarified that if there are other grounds available to the passport authority to refuse the passport, it is for the authority to consider the same in accordance with law. The passport may not be refused solely relying on the present criminal cases, which are pending against the petitioner, in case permission is granted by the Magistrate as indicated above. It is also clarified that whether such application should be granted or not is within the jurisdiction of the competent criminal court and it is for the concerned Magistrate to decide such application, if at all the same is received from the present petitioner and it is for the Magistrate to decide the same in accordance with law and this Court has not expressed any opinion on the aforesaid subject.
8. Subsequently, the Bombay High Court in Shyam Dwarkadas Chabria Vs. Regional Transport Officer and another reported in 2000 CRI. L. J. 2942 also dealt with the same issue and held as follows:
"11. The impugned order dated 5th January, 1993 passed by the Regional Passport Officer, Bombay is quashed and set aside. The petitioner will be at liberty to make an application to the Chief Judicial Magistrate, Pune for permission to travel abroad. If such an application is made, the learned Magistrate shall decide that application as expeditiously as possible and in any event within four weeks from the date of receipt such application. In case the learned Magistrate permits the petitioner to travel abroad, the passport authority shall forthwith issue the passport in terms of the order of the Magistrate subject to the terms and conditions mentioned in the notification dated 25th August, 1993."
9. Therefore, in view of the notification issued by the Central Government and as well as the law laid down in the above referred decisions, the renewal of the petitioner's passport cannot be refused merely on the ground of pendency of the criminal case. In fact, the petitioner ought to have been directed to approach the Court concerned before which the criminal case is pending and move an appropriate application seeking permission of the Court for necessary directions. Hence, the stand taken by the respondent by stating that mere pendency of the criminal case would operate as a bar for seeking renewal of the passport cannot be sustained.
10. In view of the above reasons, the writ petition is disposed of by giving liberty to the petitioner to approach the learned Additional District and Sessions Court (FTC), Ramanathapuram in the pending case, in S.C.No.91 of 2005, with an appropriate application seeking permission for him to go abroad. If such application is made, the learned Additional District and Sessions Court (FTC), Ramanathapuram, may consider the same and pass orders on merits and in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the contentions raised by the petitioner in the writ petition. No costs. Consequently, connected miscellaneous petition is also closed.
cs To The Passport Officer, Madurai Passport office, Madurai.