Madras High Court
S.M.Shoba vs The Joint Secretary (Psp) & Passport ... on 24 March, 2016
Author: B.Rajendran
Bench: B.Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.03.2016
CORAM
THE HONOURABLE MR.JUSTICE B.RAJENDRAN
W.P(MD)No.4092 of 2016
S.M.Shoba .. Petitioner
Vs.
1.The Joint Secretary (PSP) & Passport Officer,
Ministry of External Affairs,
Room No.8, 1st Floor,
Patiala House Annexe,
New Delhi ? 110 001.
2.The Regional Passport Officer,
O/o. The Regional Passport Officer,
Bharathi Ula Street,
Racecourse Road,
K.Pudur, Madurai ? 625 002.
3.The Inspector of Police,
All Women Police Station,
Madurai South,
Madurai District.
(Crime No.18 of 2014)
4.M.S.Sridevi Priya
5.M.Sivasubramanian .. Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Mandamus to direct the Respondent No.2 to take
necessary action to impound the Passport of the respondent Nos.4 and 5 in the
light of section 10 of the Passport Act considering the pendency of the
criminal case against respondent Nos. 4 and 5 within the time stipulated by
this Hon'ble Court.
!For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.N.Shanmugaselvam
1 and 2
:O R D E R
This Writ Petition has been filed seeking issuance of a Mandamus to direct the second respondent to impound the passport of the respondents 4 and 5 in the light of section 10 of the Passport Act considering the pendency of the criminal case against respondents 4 and 5 within the stipulated time.
2.According to the petitioner, the petitioner's marriage was solemnized on 11.09.2011 with one Saravana Babu. Even at the time of marriage and thereafter, the petitioner's husband, his parents, his sister the fourth respondent and his brother-in-law the fifth respondent have demanded dowry. Even though they have agreed to pay the demand and arranged for the marriage, thereafter they fell apart. On 20.05.2014, the petitioner had lodged a complaint before the third respondent police against her husband and in-laws including the respondents 4 and 5, and a case has been registered in Crime No.18 of 2014 under Section 498-A of IPC and Section 4 of Dowry Prohibition Act, 1961. Subsequently, the case has been converted into C.C.No.631 of 2014 which is now pending on the file of the Additional Mahila Court, Madurai where an absconding charge sheet has been laid before the Court as against the respondents 4 and 5 for offences under Sections 498-A, 406 of IPC r/w 109 of IPC and Section 4 of Dowry Prohibition Act, 1961 and non-bailable warrants were issued and the same are pending against the respondents 4 and 5 as they did not appear before the Court and therefore, the Criminal Court is not able to proceed further. In view of the same, the petitioner has made a representation on 20.01.2016 seeking the respondents 1 and 2 to take steps to impound the passport of the respondents 4 and 5 in the light of Section 10 of the Passports Act, 1967 as criminal case is pending against them. According to the petitioner, when the parties are evading the summons and not appearing before the Court and a criminal case is pending, the passport has to be impounded to see that the trial is conducted or the respondents 4 and 5 to be present before the Court.
3.It is useful to extract Section 10 of the Passports Act, 1967, which reads as under:
10.Variation, impounding and revocation of passports and travel documents.--
(1) The passport authority may, having regard to the provisions of sub-
section (1) of section 6 or any notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice.
(2) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescribed conditions) of the passport or travel document.
(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,?
(a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;
(b) If the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf:
5 [Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport.] 1[Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport.]"
(c) if the passport authority deems it necessary so to do 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;
(d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, 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;
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;
(f) if any of the conditions of the passport or travel document has been contravened;
(g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same;
(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.
(4) The passport authority may also revoke a passport or travel document on the application of the holder thereof.
(5) Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel document under sub-section (1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document 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 a copy.
(6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority.
(7) A court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document: Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void.
(8) An order of revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.
(9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, surrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation.
4.In fact, a reading of Section 10 of the Act clearly indicates that the passport can definitely be impounded by the authority as per sub-clause 3 of Section 10 provided if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof or if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf or if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport or if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport or if the passport authority deems it necessary so to do 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. Then clause (d) is important which says if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, 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 or if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India or if any of the conditions of the passport or travel document has been contravened.
5.In this case, the only point if at all the petitioner can raise is that the criminal case is pending. Therefore, what the petitioner now seeks is by virtue of her representation made to the authorities concerned, she wants the passport of the respondents 4 and 5 to be seized or impounded because of the pendency of the criminal case. In this connection, it is worthwhile to refer to a judgment of this Court passed in W.P.Nos.18637 and 22205 of 2014 wherein it has been categorically made a distinction between the criminal case pending and the power of the police to impound the passport and also the power of the officer to impound the passport. There a distinction has been clearly made only when charge sheet is filed, the criminal case deems to be pending. Even in that case before passing any order they have to convince that he may flee from the country and ultimately, following the judgment of the Hon'ble Supreme Court, this Court has held that passport cannot be impounded merely because a criminal case is pending. Even according to the petitioner, the criminal case is only at the stage of the complaint and then it is now pending PRC and charge sheet has not been filed. The relevant portion of the above judgment is extracted as under:
?25. After taking note of the provisions of Section 10(3)(e) of the Passports Act, 1967 and after taking note of the decisions of two Constitution Benches, one in Satwant Singh Sawhney Vs. D.Ramarathnam, Assistant Passport Officer [1967 (3) SCR 525] and Menaka Gandhi Vs. Union of India and another [1978 (1) SCC 248], the Supreme Court held that the Passports Act, 1967 being a Special Act, the provisions contained therein would prevail over Section 104 of the Criminal Procedure Code, which confers general power upon the Court to impound any document. The Court also pointed out the distinction between the mere seizure of a passport and the impounding of the same. A seizure is made at a particular moment, when somebody takes into possession of some property. However, if the seized property is retained for some period of time, the retention amounts to impounding. Therefore, the Supreme Court pointed out that while the Police may have the power to seize a passport under Section 102 of the Code, if it is permissible within the authority given therein, it does not have the power to retain or impound the same. The Court also indicated that the moment the Police seizes a passport under Section 102 of the Criminal Procedure Code, they must send it along with a letter to the Passport Authority clearly stating that the seized passport deserves to be impounded for any of the reasons mentioned in Section 10(3). It is thereafter for the Passport Authority to decide what to do. Even while taking a decision, the Passport Authority is to give an opportunity of hearing. What is important in the aforesaid decision is that in paragraph 15, the Court indicated that even the Court cannot impound a passport despite the enabling provision in Section 104 of the Code.
26. In Veenita Gupta Vs. State [2011 (1) L.W. (Crl.) 253], P.R.Shivakumar,J, following the decision in Suresh Nanda, held that even in a case where the prosecution relied upon some of the entries found in the passport, in proof of the charges levelled against the accused, the passport cannot be impounded.
27. In Kaja Mohaideen Vs. The Senior Intelligence Officer, Coimbatore [2013 (1) L.W. 114], the question that came up for consideration is as to whether the Customs Officers can detain the passport of an accused indefinitely. After referring to various decisions of various High Courts as well as the decision of the Supreme Court in Suresh Nanda, M.Venugopal,J held that though under Section 14 of the Passports Act, even a Customs Officer can seize any passport, on the suspicion that the holder thereof had committed an offence punishable under Section 12 of the Passports Act, the action for impounding can be taken only by the Competent Authority. Eventually, the learned Judge held that the Customs Authority had no power to impound the passport.
28. In Abhijit Sen Vs. Superintendent [2004 Crl.L.J. 1281], a Division Bench of the Calcutta High Court was concerned with a case where the Passport Authority impounded the passport under Section 10(2)(e), on the ground that a criminal case was pending against the passport holder. The Calcutta High Court held that there are two processes for initiation of a proceeding before a Criminal Court. While the first part is the investigation by the Police, the other part is the direction by the Court. Therefore, after pointing out the condition prescribed in Section 190 of the Criminal Procedure Code for initiation of proceedings, the Division Bench of the Calcutta High Court opined that the proceedings before a Magistrate is initiated when cognizance is taken. The Court held that no proceeding can be said to have been initiated under Clause (a) of Section 190 within the meaning of Section 10(2)(3) of the Passports Act.
29. As pointed out earlier, the case of the petitioner is not covered by anyone of the contingencies stipulated in Clauses (a) to (h) of Sub-
Section (3) of Section 10. Even if his case comes under anyone of these categories, it is only for the Regional Passport Officer to take action. So far, they have not taken any action. It is up to them to decide whether they should take any action under Sub-Section (3) of Section 10 or not. Now, a period of nearly six months has passed from the date of seizure. Therefore, the respondents have no authority to continue to retain the passport.
30. The apprehension of the fourth respondent - wife that the petitioner may never return to India, is just an illusion or delusion. In the event of a charge sheet being filed before the Criminal Court and in the event of non appearance of the petitioner or in the event of conviction of the petitioner by the Criminal Court, the Regional Passport Officer can always impound the passport, wherever the petitioner is. There is no bar for the Regional Passport Officer to impound the passport, if the holder is outside India. Physical seizure of a passport may not be possible, if a person is outside India. But, impounding is certainly possible. Once the passport is impounded, the continued stay of the petitioner in Singapore will be unlawful, as he will be without a valid travel document to stay in Singapore at that time. In other words, the fourth respondent - wife will not be left without a remedy, even if the passport is returned and the petitioner leaves for Singapore.
31. ....
32. ....
33. ....
34. ....
35. As I have stated earlier, the case of the petitioner does not fall under any of the categories listed out in Clauses (a) to (h) of Section 10(3). To make the case fall under Clause (e), a charge sheet should have been filed. Therefore, even if I permit the Regional Passport Officer to proceed in accordance with Section 10(3) of the Act, he has to return the passport, since the contingency for invoking Section 10(3) has not yet arisen.
36. Therefore, the writ petition W.P.No.18637 of 2014 is also allowed directing the Regional Passport Officer to return the passport to the petitioner forthwith. In the event of a charge sheet being filed, it will be open to the Regional Passport Officer to initiate proceedings under Section 10(3)(e), irrespective of the fact that the petitioner may be in Singapore at that time. In the event of the passport of the petitioner being impounded or revoked ultimately for whatever reason in accordance with law, it will always be open to the respondents to inform the Immigration Authorities and point out that the petitioner's stay in Singapore is without a valid passport or travel document. No costs. Consequently, all connected pending MPs are closed.?
6.Therefore, this writ petition cannot be entertained in view of the order passed by the Division Bench of this Court in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, to which I was also a party. In the said decision, following the Supreme Court decision, this Court has held that an application that could not even be considered, cannot be directed to be considered by the authority. Therefore, very strongly opposes the application of this nature and the maintainability of the application also. The Supreme Court in the case of A.P.SRTC Vs. G.Srinivas Reddy, reported in (2006) 3 SCC 674 = 2006-3-L.W.170, had observed as follows:-
?19. There are also several instances where unscrupulous petitioners with the connivance of "pliable" authorities have misused the direction "to consider"
issued by court. We may illustrate by an example. A claim, which is stale, time- barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to "consider" and dispose of the representation. When the court disposes of the petition with a direction to "consider", the authority grants the relief, taking shelter under the order of the court directing him to "consider" the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order "to consider" as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to "consider", may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction to "consider" the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders "to consider".
7.Following the Apex Court's judgment cited supra, a Division Bench of this Court, in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, had in para 8 observed:-
?....
8. Why we are extracting this judgment in such detail is that we should be aware of the consequences of our order when we direct the authorities to "consider". In the aforesaid situation, if the learned Judge, before directing the authorities to consider, had heard the petitioner herein, then the order of the Division Bench reprimanding the 5th respondent would have been brought to the notice of the learned Single Judge. Some time, we also come across cases where our directions is to an authority who cannot really pass an effective order and the effective order can only be passed by an authority superior to the one to whom we issue directions. Obviously, when the order is not complied with, since it cannot be complied with because of the hierarchy discipline, the officer has to face the contempt. All these can be avoided if we only bear in mind the guidelines given in the above case by the Supreme Court before we direct the respondent to "consider and pass orders".
8.This Court is of the view that filing a Writ Petition seeking direction to the Passport Authority to impound the passport of the rival parties in a family dispute is nothing but a tactics has now been invented to somehow harass the other side either way. Therefore, if every case like this is started, it will put to irreparable loss to the other party unless a firm thing is made out before the Court to show that the party has violated any conditions. Impounding the passport is not an automatic and routine one and under the caption of consideration of representation the petitioner cannot think that a positive direction would be given. Therefore, this Court is not passing any order. Accordingly, the Writ Petition is dismissed. No costs.
To
1.The Joint Secretary (PSP) & Passport Officer, Ministry of External Affairs, Room No.8, 1st Floor, Patiala House Annexe, New Delhi ? 110 001.
2.The Regional Passport Officer, O/o. The Regional Passport Officer, Bharathi Ula Street, Racecourse Road, K.Pudur, Madurai ? 625 002.
3.The Inspector of Police, All Women Police Station, Madurai South, Madurai District.
(Crime No.18 of 2014).