Karnataka High Court
Ramachandra Subray Nirvaneshwar vs Union Of India on 29 October, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC-D:15981
WP No. 106204 of 2024
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 106204 OF 2024 (GM-PASS)
BETWEEN:
1. RAMACHANDRA SUBRAY NIRVANESHWAR,
A/A 54 YEARS, BUSINESS,
2. JAYASHREE W/O. RAMACHNDRA NIRVANESHWAR,
A/A 46 YEARS, L.I.C. AGENT,
BOTH R/O. NAGABEEDI, GOKARNA,
TAL-KUMTA, PIN-581326, U.K. DISTRICT.
...PETITIONERS
(BY SRI A.P. HEGDE JANMANE, ADVOCATE.)
AND:
1. UNION OF INDIA,
SECRETARY, MINISTRY OF EXTERNAL AFFAIRS,
MALLIKARJUN SOUTH BLOCK, NEW DELHI-110001.
RUDRAYYA
KALMATH
Location: HIGH
2. REGIONAL PASSPORT OFFICER,
COURT OF
KARNATAKA
REGIONAL PASSPORT OFFICE,
DHARWAD
BENCH 8TH BLOCK, 80 FEET ROAD,
KORAMAGALA, BANGALORE-560095.
...RESPONDENTS
(BY SRI M.B. KANAVI, ADVOCATE.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI AND MANDAMUS:
I) QUASHING THE IMPUGNED ENDORSEMENT DATED 18.10.2024
ISSUED BY RESPONDENT NO.2 (ANNEXURE-G AND G1);
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WP No. 106204 of 2024
II) TO ISSUE WRIT OF MANDAMUS TO RESPONDENTS DIRECTING
THEM TO ISSUE PASSPORT IN FAVOUR OF PETITIONERS
NOTWITHSTANDING THE PENDENCY OF CRIMINAL CASE, IF
THEY ARE ELIGIBLE IN OTHER RESPECTS;
III) PASS SUCH OTHER ORDERS AS THIS HON'BLE COURT DEEMS
FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE
INCLUDING THE AWARD OF COSTS IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR)
1. This petition is filed by the petitioner Nos.1 and 2 seeking to quash the impugned endorsement dated 18.10.2021 at Annexures-G and G1, and consequently for a writ of mandamus and a direction to the respondents to issue passports in favour of the petitioners, notwithstanding the pendency of a criminal case.
2. It is the case of the petitioners that they are husband and wife respectively. They were issued passports bearing No.L8884914 dated 21.04.2014 and L6251234 dated 17.12.2013 respectively and the passports of both the petitioners expired and accordingly they have applied for renewal of the passports.
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3. This being the state of affairs, a criminal case was registered in the name of the petitioners and their family members to take revenge pertaining to civil dispute. The said criminal case was registered in C.C.No.348/2018, which is pending adjudication before the JMFC Court, Kumta, Uttara Kannada district. Petitioner No.2 working as LIC agent has been selected from Dharwad division to participate in a Seminar to be held at Japan from 18.11.2024 to 21.11.2024.
Hence, petitioner No.2 decided to travel along with his wife petitioner No.1 to visit foreign country namely Japan and hence applied for renewal of the passports which are expired.
4. Petitioners applied before the JMFC Court, Kumta, seeking appropriate orders by filing application seeking permission to go to Japan by virtue of an order dated 12.08.2024 in C.C.No.348/2018 and the Addl. JMFC Court, Kumta, passed an order at Annexure-F allowing the application and permitting the petitioners/accused Nos.1 and 2 to be set at liberty to leave jurisdiction of the Court from 15.11.2024 till 30.11.2024 by depositing cash security of -4- NC: 2024:KHC-D:15981 WP No. 106204 of 2024 Rs.50,000/- each with a further condition that petitioner Nos.1 and 2, who are accused Nos.1 and 2, shall appear before the Court on the next date of hearing fixed by the Court without fail, after completion of their educational tour and further passed an order, that in case they fail to appear, the amount so ordered will be forfeited to the State.
5. After obtaining the said permission from the jurisdictional Court, where the criminal proceedings are pending, the petitioners made an application to respondent No.2 for renewal of the passports. However, respondent No.2 by the impugned order Annexure-G and G.1 declined and refused to consider the application for renewal on the ground stated therein i.e., a criminal case is pending, as per police verification report, please furnish proof of clearance of the case and clarify in person before the passport office in both the applications. It is this order passed by respondent No.2 that is questioned by the petitioners.
6. Learned counsel for the petitioners vehemently contends that renewal of passports is sought by petitioners No.1 and 2 as they were required to travel to foreign country -5- NC: 2024:KHC-D:15981 WP No. 106204 of 2024 namely Japan to attend the educational tour and since the criminal case is pending, they have obtained permission from the Criminal Court by filing an application and the same having been allowed, respondent No.2 could not have objected the application when already the jurisdictional Criminal Court before which the criminal case is pending has granted such a permission. Therefore, the impugned order passed by respondent No.2 is unsustainable in law.
Therefore, he seeks indulgence of this Court to set aside the said order and grant a writ of mandamus directing the respondent authorities to renew the passports.
7. Learned counsel for the respondent authority sustains the order passed by the authorities on the ground that the criminal case is pending.
8. The Ministry of External Affairs has issued notification dated 25.08.1993 wherein it is clearly specified certain guideline for issuance of passport and permission to the person applying for passport and travel document to travel outside the country. The said Notification dated 25.08.1993 reads as under:
-6-NC: 2024:KHC-D:15981 WP No. 106204 of 2024 "Reference is invited to Notification No.GSR 570(E) dated 25.08.1993 regarding issuance of passports to applicants who have criminal proceedings pending against them and whose applications would attract the provisions of clause(f) of sub-section (2) of Section 6 of the Passport Act,1967.
2. GSR 570(E) dated 25.8.1993 is reproduced below for reference:
GSR 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. GSR 298(E) dated the April 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 provisions of Clause (f) of sub- section (2) of Section 6 of the said Act, subject to the following conditions, namely:--7-
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(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 validity of the passport, the passport shall be issued for one year;
(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 -8- NC: 2024:KHC-D:15981 WP No. 106204 of 2024 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 given 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.
3. It may be noted that applicants may be refused passports only on grounds mentioned under Section 6(2) of the Passports Act, 1967. Section 6(2)(f) of the Act states that the passport authority shall refuse to issue a passport or travel document to an applicant on the ground that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India. GSR 570(E) dated 25.8.1993 was introduced to give relief to such applicants against whom criminal proceedings are pending before any Court of law in India but who may need to travel abroad for some urgent business. With an undertaking under GSR 570(E) and an order from the Court, an applicant could be issued a short validity passport of one year validity for the period specified by the Court.
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4. It has been noticed that there are an increasing number of references being received regarding passport applications attracting Section 6(2)(f). It has also been brought to Ministry's notice that there are a number of complex issues involved while processing such applications. During the proceedings in a recent court case, the Hon'ble h Court of Delhi in W.P. (CRL) No. 2844/2018 /CRL.M.A 48674/2018 has directed guidelines be issued by the Ministry reiterating the procedure for processing of such applications and emphasizing that such applications need to be processed with due care and diligence.
5. In view of the above, the following instructions may be adopted while processing passport applications in respect of those applicants who may have criminal proceedings pending before a criminal court in India:
(i) The provisions of GSR 570(E) may be strictly applied in all cases. GSR 570(E) is a statutory notification and hence forms part of the Rules. It is to be noted that as per Section 5(2) of the Passports Act, 1967, the passport authority shall by order in writing take a decision whether to issue or refuse a passport, after making such inquiry, if any, as it may consider necessary.
Moreover, Section 7 of the Passports Act, provides that a passport or travel
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NC: 2024:KHC-D:15981 WP No. 106204 of 2024 document may be issued for a shorter period than the prescribed period if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period. Rule 12 of the Passport Rules, 1980 only states that an ordinary passport shall be in force for a period of 10 years which implies that an ordinary passport cannot be issued beyond a period of 10 years.
(ii) Whenever an applicant is submitting a 'No Objection Certificate' (NOC) from a Court of law in India, the applicant should be advised that undertaking as per GSR 570(E) should be complete in all respects and should mention all the pending criminal cases against the applicant. The undertaking will have a note clearly stating that if any false or incomplete information is submitted by an applicant, then his passport application is liable to be rejected.
(iii) Extant instructions clearly lay down that such applications should be processed on pre-Police Verification (PV) mode. "Pre-PV" would be mandatory in all cases of applications submitted with GSR 570(E) to ensure that the undertaking submitted by the applicant is properly matched with the criminal cases mentioned in the Police Verification Report (PVR). Hence, such applications should not be accepted under Tatkaal nor such applications be moved to "post-PV"
mode or "No-PV" mode without proper
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(iv) If an undertaking is incomplete or misleading and the applicant is found to have suppressed details of other criminal cases against the applicant, a Show Cause Notice should be issued to the applicant and action initiated against that applicant as per provisions of Section 12 of the Passports Act, 1967. If information that an applicant has obtained a passport by making a false submission or by suppressing material facts comes to light after the passport has been issued, the passport may be impounded or revoked as per provision of Section 10(3) (b) of the Passports Act, 1967, after following the due procedure.
(v) In case where the first Police Verification(PV) is 'Adverse', secondary police verification may be generated.
While a secondary PV is generated, it should be accompanied by a detailed letter seeking clarification regarding the pending criminal cases against the applicant and the status of these cases. Apart from generating secondary PVR, the passport officers may, if considered necessary, call for discreet enquiry through the police authorities by sending the court order submitted by the applicant or even seek verification from other government agencies/departments, as the case may be.
(vi) In case where the secondary Police Verification is also 'Adverse', it may be examined whether the details
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NC: 2024:KHC-D:15981 WP No. 106204 of 2024 brought out in the police report match the undertaking submitted by the applicant. It may be noted that mere filing of FIRS and cases under investigation do not come under the purview of Section 6(2)(f) and that criminal proceedings would only be considered pending against an applicant if a case has been registered before any Court of law and the court has taken cognizance of the same.
(vii) If the details given in the police report and the undertaking submitted by the applicant are matching, then the 'No Objection Certificate' issued by a Court of law submitted by the applicant would take precedence over any 'Adverse' report submitted by the police. In such cases, the 'Adverse' report may be overruled with the written approval of the Passport Officer.
(viii) If the details given in the PVR and the undertaking submitted by the applicant are at variance, then a notice may be issued to the applicant calling for clarification and advising the applicant to submit details of all pending criminal cases as well as to submit a revised No Objection Certificate (NOC).
(ix) If it is brought to the notice of the authority that an applicant has criminal proceedings arrayed against applicant before several courts of law, then the applicant may be advised to get NOC from all the concerned court(s). Normally, the Court Order would make a mention of the cases pending against the applicant as well as the prayer made by
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NC: 2024:KHC-D:15981 WP No. 106204 of 2024 the applicant. This may be examined along with the undertaking submitted by the applicant and complaints or other court orders, if any, that may have been received against the applicant.
(x) It may noted that GSR 570(E) only exempts an applicant from the operation of Section 6(2)(f) and none of the other sub-sections of Section 6(2) of the Passports Act, 1967.
(xi) A revised Undertaking under GSR 570(E) is attached at Annexure 'A'.
(xii) Passport Officers may issue an internal SOP along the above lines so that there is no confusion in handling of applications that would attract provisions of section 6(2)(f) of the Passports Act, 1967.
6. The above instructions may be noted for strict compliance with immediate effect."
9. Pursuant to this Notification dated 25.08.1993 another official memorandum in the form of memorandum has been issued by the Ministry of External Affairs, Government of India dated 10.10.2019 and by issuing certain instructions to the passport authority, while processing the passport application in respect of those
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NC: 2024:KHC-D:15981 WP No. 106204 of 2024 applications which may have criminal cases pending before the Criminal Court in India.
10. In the present facts and circumstances of the case it is not in dispute that the criminal case is pending against the petitioners No.1 and 2. Hence the petitioners approached jurisdictional Court filed an application seeking permission to travel abroad specifically to Japan and the same having been allowed by the jurisdictional Court and having produced before the same before the respondent authorities, the passport authorities ought not to have rejected the said application for renewal and on the basis of the permission granted by Court, the respondent authorities ought to have accepted the application and renewed the passports in accordance with law and on the basis of the circulars issued by the Ministry of External Affairs, as the same would fall within the provisions of section 6(2)(f) of the Passports Act.
11. This Court in similar matter has passed an order in W.P.No.103665/2023 decided on 26.06.2023, extracting the guidelines and circulars issued by the Ministry of External
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NC: 2024:KHC-D:15981 WP No. 106204 of 2024 Affairs by its notification dated 25.08.1993. Another notification issued by the Ministry of External Affairs dated 10.10.2019 by issuing certain instructions to the passport authority while processing the passport in respect of those applications where the criminal cases are pending against the said applicants. All this ought to have been considered by the respondent authority and accepted the application and granted renewal. Accordingly I pass the following:
ORDER
i) The writ petition is allowed.
ii) The impugned endorsement dated 18.10.2024, issued by respondent No.2, vide Annexure-G and G.1 are hereby quashed.
iii) A writ of mandamus is issued directing respondent No.2 to issue the passport in favour of the petitioners taking into consideration the permission having been granted by the jurisdictional Court before which the criminal case is pending against the petitioners.
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iv) Permission having been obtained by following the due process of law, respondent No.2 shall pass suitable orders of renewal of passport by accepting the application on or before 08.11.2024.
Sd/-
(PRADEEP SINGH YERUR) JUDGE KGK-para 1 to 3.
MRK-para 4 to end.
CT-MCK List No.: 1 Sl No.: 27