Kerala High Court
Jayan V.M @ Jayasoorya vs Union Of India on 4 October, 2018
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
THURSDAY,THE 04TH DAY OF OCTOBER 2018 / 11TH ASWINA, 1940
WP(C).No. 28207 of 2018
PETITIONER/S:
JAYAN V.M @ JAYASOORYA
AGED 39 YEARS, S/O MONI,
SWAPNAKOODU, HOUSE NO.28/1804-B,
AMALA BHAVAN BYE ROAD,
KADAVANTHRA P O ,
KOCHI-682020
BY ADV. MILLU DANDAPANI
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF EXTERNAL
AFFAIRS,
NEW DELHI-110001.
2 REGIONAL PASSPORT OFFICER
REGIONAL PASSPORT OFFICE,
PANAMPILLY NAGAR P.O, KOCHI-682036.
682036
*3 ADDL. R3. DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI CORRUPTION BUREAU,
ERNAKULAM - 682017.
ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATE
06/09/2018 IN IA NO.1/2018.
BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.28207 OF 2018 2
JUDGMENT
Petitioner Jayasoorya, a film artist, holds a passport, issued in October 2008 and valid till October 2018. On 30th November 2017, he applied to the Regional Passport Officer (the "Passport Officer"), the second respondent, for its renewal because, by then, the pages in the passport were exhausted. Jayasoorya asserts that he often goes abroad. Indeed, on his application, he did secure a new passport, valid till 29.11.2027.
2. In January 2018, Jayasoorya, however, received the Ext.P3 show cause notice from the Passport Officer. The notice informs Jayasoorya that while his securing the renewed passport, he suppressed a pending criminal case against him. That case is pending before the Vigilance and Anti-Corruption Bureau, Ernakulam. In turn, Jayasoorya submitted the Ext.P3(a) reply. He informed the Passport Officer that he had never been aware of the pending case, for he had no notice about it.
3. Despite Jayasoorya's Ext.P3(a) reply, the Passport Officer served the Ext.P4 notice, identical to the previous notice. Jayasoorya replied through the Ext.P4(a). Again the Passport Officer, for the third time, issued the Ext.P5 show cause notice--again an almost-identical one. And Jayasoorya, WPC No.28207 OF 2018 3 once again, replied through the Ext.P5 (a).
4. Odd as it may sound, the Passport Officer, for the fourth time, issued the Ext.P6 show cause notice. Tired of replying, Jayasoorya has filed this writ petition.
Submissions:
Petitioner's:
5. Sri Millu Dandapani, the petitioner's counsel, strenuously contends that all the four notices are identical and none of last three notices referred to Jayasoorya's reply. He asserts that the Passport Officer has acted mechanically and applied no mind.
6. To elaborate, Sri Dandapani has taken me through the salient aspects of the Passport Act. He also underlined Jayasoorya's constitutional right to travel--a fundamental right, at that. In the end, to assert that the Passport Officer's action falls foul of both the statutory and the constitutional mandate, he has relied on these decisions: (a) Anand Tewari v. Union of India1 ; (b) Rajbardhan Singh Rajpoot v. The Union of India2;
(c) Manish Kumar Mittal v. Chief Passport Officer 3; (d) P.T. Manoharan v. 1 2014 (1) JCC 186 2 MANU/DE/4730/2013 3 202 (2013) DLT 317 WPC No.28207 OF 2018 4 The Regional Passport Officer4; (e) Monika Karmakar v. Union of India5 ;
(f) Kunjumon Thankappan v. Chief Passport Officer 6; (g) Muhammed v. Union of India;7 and Union of Inida v. Charanjit Kaur.8 Respondents':
7. Sri Jaishankar V. Nair, the learned counsel for the Central Government, on the other hand, has submitted that the Ext.P3 notice cannot be termed a statutory one. According to him, it is only an intimation to Jayasoorya. He has also contended that in response to the Ext.P3 notice; besides replying, the petitioner himself appeared before the Passport Officer and wanted the information about pending crime reverified. So the officer required the State Police to have the issue reverified.
8. But on re-verification, too, the Police, according to Sri Jaishankar, returned the same information. As a result, the Passport Officer issued the Ext.P4 notice, the statutory one. Sri Jaishankar submitted that to the Ext.P4 show cause notice, the petitioner has not replied. So the Passport Officer issued the Ext.P5 show cause notice and, later, followed it up with the
4 MANU/TN/1712/2015 5 (2016)3C ALL T 68 (HC) 6 2012 (1) KHC 720 7 Judgment dated 17.07.2018 in W.P.(C) No.21199/2018 8(1987) 1 SCC 471 WPC No.28207 OF 2018 5 Ext.P6 notice.
9. Sri Jaishankar, however, spared no effort to distinguish all the four notices. According to him, the first one is a mere intimation; the second one received no reply, and the third one alone should be treated as substantial notice. And on the fourth notice, he submits that it is a proposal to impound the passport. In that notice, the Passport Officer has specifically mentioned Section 10(3)(b), besides Section 12(1)(b) of the Passport Act, he adds.
10. Drawing my attention to the second respondent's statement, Sri Jaishankar also submits that the Jayasoorya's explanation was not satisfactory. Then, through the Ext.P6 notice, the Passport Officer proposed to impound the passport. To a specific query, he submitted that though the passport physically remained with Jayasoorya, the Ministry of External Affairs' Web Portal reflects the state of the passport as 'impounded'.
11. The learned Government Pleader for the State, on instructions from the Police, affirms that a vigilance crime has been registered against Jayasoorya and others under Sections 13(1)(d)(ii) and13(2) of Prevention of Corruption Act, 1988, read with Section 120(B) IPC. But he also clarifies that no charge sheet has been filed yet.
WPC No.28207 OF 2018 6
12. Heard Sri Millu Dandapani, the learned counsel for the petitioner, Sri Jaishankar, the learned Central Government Counsel, and Sri Mathew George Vadakkel, the learned Government Pleader appearing for the 3rd respondent.
Discussion:
13. To begin with, the material facts are not in dispute. Jayasoorya, a film artist, has a passport. Pages exhausted with repeated stamping, he surrendered it and secured a new one--a renewed one, at that. Later, he received a barrage of notices, relentlessly replied but, in the end, lost his passport--to impounding.
14. First, we will see the tone and tenor of the notices, besides their manner. The first notice, Ext.P3, informs Jayasoorya about an adverse Police Verification Report: a vigilance case registered against the applicant as No. 3/2016 under S.13(i)(d) at VACB, Ernakulam Unit. So it wants Jayasoorya's reply preferably by email or post. It also gives him an option to approach the office in person.
15. The notice, in fact, wants Jayasoorya to "provide a suitable explanation and submit a fresh application with correct details." It also wants "a proper explanation regarding the circumstances under which WPC No.28207 OF 2018 7 Jayasoorya suppressed the material information in his passport application"
about the pending crime. And finally, the notice requires Jayasoorya to state "why action should not be taken to impound the passport . . . under Section---- [blank] of the Passport Act, 1967 and" why under Section 12(1)(b) of the Passport Act, 1967 action should not be initiated against him.
16. The first notice is, indeed, a show cause notice. It calls on Jayasoorya to show cause why the passport should not be impounded. It leaves, however, the statutory provision blank, but mentions Section 12 (1)
(b) as the provision for the department to take action.
17. The Ext.P3 (a) is the reply. And the Passport Officer, too, admits his receiving a reply. In addition, the Officer also asserts that Jayasoorya met him in person and wanted the information about the crime reverified. So on reverification, the Officer issued the second notice.
18. The second notice begins on identical lines as did the first notice. It also asks Jayasoorya to "state why action should not be taken to impound the passport . . .. Under section --- [blank] of the Passports Act, 1967, and Section 12(1)(b) of the Passports Act, 1967 should not be initiated against you." Verbatim.
19. It is replied to. But the Passport Officer denies having received WPC No.28207 OF 2018 8 reply. Plausible as it seems, the Officer's assertion suffers shortcomings. The second notice does not refer to the first one or the reply--leave alone Jayasoorya's meeting in person and requiring reverification. It contains no reference to the alleged police reverification either. In fact, the second notice is a verbatim reproduction of the first one, minus minor details. In both notices, the space for the statutory provision remains blank, leaving the applicant in dark about which provision is invoked.
20. Now comes the third one. After the first three identical paragraphs, the notice informs that the "Show Cause Notice is issued" to Jayasoorya for the reason mentioned: Criminal case is pending before the Court. Then it calls on Jayasoorya to state "why action should not be taken to impound the passport . . . Under Section 10 (3) (e), ''Criminal case is pending before the Court'' of the Passports Act, 1967 and Section 12 (1)(b) of the Passports Act, 1967 should not be initiated against you." For the first time, on the third attempt, the blank left for the provision stands filled up. So the offence is under Section 10 (3) (e) and action proposed is under Section 12 (1) (b) of the Act.
21. Jayasoorya replies. But the Passport Officer finds the explanation unsatisfactory. So follows the fourth notice under Section 10(3)(b) instead WPC No.28207 OF 2018 9 of 10(3)(e). This notice, of course, is identical to the third one. But it again contains no reference to Jayasoorya's reply or defence, not to speak of the grounds why the explanation is unsatisfactory. Thus, notices one to four contain identical information and propose identical action and end up the same way: informing Jayasoorya of nothing more than what the first notice informed. A mechanical, ritualistic rigmarole. Wiser with experience, Jayasoorya has not replied, for all his previous replies yielded nothing.
22. Indisputable is a citizen's right to travel. And that right receives constitutional protection, as one of the fundamental rights. Law brooks no contradiction on that score. So I may have to examine how the Passport Department has dealt with a fundamental right. The notices spoken about above reveal everything; they reveal that the Department did nothing more than repeating itself ad infinitum. I feel sad about the cavalier or causal approach the Passport Department adopted, at least in this case. For I do not want to smear the Department's image with one broad sweep of the brush.
23. This Court in Muhammed has observed that freedom of movement is a facet of fundamental rights. A citizen's right to travel can be curtailed only through the procedure established by law. If the right to WPC No.28207 OF 2018 10 travel is a part of the personal liberty of a person, he cannot, according to Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi9, be deprived of his freedom except by due process of law.
24. Statutorily speaking, Section 6 (3) deals with the impounding and revoking of passport. Clause (b) strikes at the applicant's suppressing material information or providing wrong information. Pending criminal proceedings may result in impounding or revoking. The notices mention two provisions: Section 10 (3) (e) and Section 12 (1) (b) of the Act. We will see their impact.
25. Section 10 (3) (e) deals with the "proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document" pending before a criminal court in India. Section 12 enlists the offences and penalties. Section 12 (1) (b) reads:
[K]nowingly furnishes any false information or suppresses any material information with a. view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document;
26. On "pending crime" this Court in Muhammed has held that mere registration of a crime invokes neither Section 6 nor Section 10. It went on to observe that the police verify the applicant's identity, the 9 AIR 1967 SC 1836 WPC No.28207 OF 2018 11 citizenship, and antecedents. This information verification is pivotal.
"Incomplete, vague or adverse" PVR received, the Passport Officer can ask for more information from the applicants. Indeed, if the report is adverse, the authority may refuse to issue the passport. Besides, it may impound or revoke the passport already given, acting on the adverse report. But all those steps must adhere to due process: the principles of natural justice. Put on notice, if the applicant replies or fails to respond on time, the authority may decide the further cause of action.
27. The "pending crime" finds mentioned in Guideline 4.3 (d) of the Passport Guidelines. That guideline declares that mere registration of an FIR does not attract Section 6(2)(f) or 10(3)(e) of the Act. It also notes that "only if cases are actually charge-sheeted" and pending before the criminal court, do those provisions apply. It then advised the officers to get the case status before refusing the applicant's request for a passport or impounding an already issued passport.
28. Here, the question is, can we accuse Jayasoorya of suppressing any material fact? A crime, in fact, was registered against him, but that crime is not "pending." So long as it is not pending, the law does not compel him to disclose. And his not revealing a crime under investigation--even if he WPC No.28207 OF 2018 12 knew about it--does not amount to suppression. But he maintains he did not know about it.
29. We will see the offence, too. Jayasoorya faces an allegation that he secured an illegal permit to construct a building violating the Coastal Regulatory Zone. For building that compound wall, he has trespassed upon a piece of government land, as well. So the allegation goes that he has bribed a couple of public servants and secured an illegal building permit. A third party, perhaps a neighbour, approached the Municipal Corporation and, then, the Enquiry Commissioner and Speical Judge of the Vigilance. Crime registered, the case seems to have been transferred to the Enquiry Commissioner and Speical Judge, Muvattupuzha. In Vigilance Case No.3 of 2016, the offence is under Section 13 (1) (d) (ii), r/w Section 13 (2) of the PC Act.
30. Jayasoorya maintains that he was unaware; he has never been put on notice about the crime--neither summons nor warrant has he received. Indeed, no charge-sheet has yet been filed: no cognizance was taken. And the learned Government Pleader for the State has not contradicted Jayasoorya's stand. Jayasoorya, in each of his replies, explained his position.
31. Because of the judicial dictum in Muhammed and a series of WPC No.28207 OF 2018 13 other cases, I hold that for the Passport Officer to have Jayasoorya's passport, none of the provisions in the Act applies. No offence pending, there is no suppression of any fact; and with no suppression, the Passport Officer cannot impound Jayasoorya's passport.
32. On the procedural propriety, we may examine a few precedents the petitioner's counsel has relied on. In Anand Tewari, the Delhi High Court stresses the importance of personal hearing. Here, Jayasoorya's first alleged appearance before the Passport Officer was not in response to a show-cause notice. For the Officer maintains that it was not a statutory notice. Even otherwise, according to him, Jayasoorya wanted a reverification. After the reverification, Jayasoorya has never been given an opportunity of hearing, save the series of show-cause notices. Anand Tewari also asserts that mere registration of a criminal case against a person does not amount to proceedings being pending against him before a criminal court. The proceedings can be said to be pending only when a charge-sheet is filed.
33. Similarly, the same High Court in Rajbardhan Singh has held that the order revoking the passport visits the passport holder with serious civil consequences. He cannot travel abroad. So, grave as the consequences are, WPC No.28207 OF 2018 14 the Passport Officer, seeking to cancel a passport, ought to follow the procedure meticulously. In Manish Kumar Mittal, again Delhi High Court has observed that the Passport Officer ought to have given, at least, a post- decisional opportunity of hearing to the person. In that context, it observes that even if a criminal case is pending against a person, that by itself does not require the Passport Officer to impound/revoke the passport in every case. It is only in appropriate cases and for adequate and cogent reasons that such an order can be passed.
34. In P. T. Manoharan, the Madras High Court has held that mere pendency of the criminal case cannot be cited as a bar to prevent the petitioner from traveling abroad. In Monika Karmakar, a Calcutta High Court judgment, the petitioner was asked to show cause why her passport should not be revoked under Section 10(3)(a) of the Act, but the decision to revoke her passport was taken under Section 10(3)(b), instead. In that context, the Court has held that the authorities ought to have allowed the petitioner to raise her defence, under the changed provision.
35. In Kunjumon Thankappan, Justice Antony Dominic (as he then was) has held that a show-cause notice calling upon the holder of a passport requiring him to show cause why the passport shall not be impounded is WPC No.28207 OF 2018 15 not a notice as contemplated under S.10(1) to attract the provision of S.10(3)(g) of the Act. Therefore, even if it is assumed that the petitioner did not show-cause against the notice dated 03.01.2011, that could not have resulted in the impounding of his passport.
36. So, viewed from any perspective, I find the Passport Authority's action indefensible. Impounding cannot be a default process. It ought to be an active participatory and adjudicatory process having far-reaching consequences. Beyond the Ext.P6 notice in June 2018, the Passport Officer does not seem to have passed any further orders. No specific order of impounding, setting specific grounds. But the learned Central Government Counsel informs about, what he calls, the usual practice: the explanation unsatisfactory, the Passport Officer concludes on revocation. And that revocation stands reflected in the Ministry's Web Portal. So an unwary traveler may still physically have the passport with him. There will be no specific order of impounding communicated. Yet, unwary, the person tries to travel--after planning the travel, buying tickets by spending money--he faces a hurdle--and embarrassment, too--at the airport. For he gets prevented from traveling. I reckon the Department must adopt a better, more rational method of impounding. There ought to be an express order WPC No.28207 OF 2018 16 of impounding passed and communicated to the passport holder.
37. That apart, we cannot here help the irrepressible issue: whether the Passport Officer merely discharges an administrative function or a quasi-
judicial function. Some say the difference between these two is visible and discernible, some say it is invisible or ever so thin, yet some others say that in a modern welfare state it is virtually nonexistent. First, the Passport Officer, through his orders, interdicts or regulates a fundamental right: the right to travel. Second, he is a high ranked public servant invested with discretion under the statute.
38. On verification, the police may send to the Passport Officer report of about the applicant's involvement in an alleged crime. But that report cannot be the final word, denying the Officer discretion to act independently. It is only a report. I may add that the Passport Officer's asking the police for the information on the stage of crime--say, whether a charge-sheet has been filed or more precisely whether cognizance has been taken--will avoid information deficiency. And armed with the information on the stage of the crime, the Passport Officer can take a definite call on how to process the applicant's request. For the stage of offence is pivotal for the Officer to process the application.
WPC No.28207 OF 2018 17
39. Second, Section 6 of the Act empowers a Passport Officer to prevent an applicant from visiting any foreign country on the enumerated grounds under that Section--and no other ground. The list of grounds is self-revealing. Leaving aside the Country's international obligations, it mainly aims at preventing fugitiveness. And Sub-Section (2), Clause (f) contains the ground of crime. That is, if judicial proceedings are pending about an offence the applicant allegedly committed, the passport authority "shall refuse to issue a passport or travel document." Section 10, indeed, deals with variation, impounding, and revocation of passports and travel documents. Under Sub-Section (3), "the passport authority may impound or cause to be impounded or revoke a passport or travel document, if (e) proceedings about an offence "alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India."
40. We may note the distinction. Section 6 is a threshold provision; it deals with the passports to be issued; Section 10 with those already issued. Crime pending in a court of law, under Section 6, the passport authority has no discretion but to refuse applicant's request for the passport. And that "pending" has a technical connotation: cognizance must have been taken. WPC No.28207 OF 2018 18 But discernibly, if the passport has already been issued, its variation, impounding, or revocation is not automatic, even if a crime is found pending against the passport holder. For the passport authority may impound or cause to be impounded or revoke a passport or travel document if criminal proceedings are pending before a criminal court in India. In fact, all contingencies contemplated under Section 10 are discretionary.
41. A passport secured, its holder, under the Act, has his or her credentials established. Later events--say, a crime--may affect those credentials. But not every crime. Every peccadillo passes off as a crime, but that cannot be a cause to restrict a right, and a fundamental right, at that. Here, we may have to interpret the provisions purposively. Preventing persons with crimes pending to travel abroad, I believe, is to avoid fugitiveness. Then, the nature of crime assumes importance. Mere property disputes or family disputes masqueraded as crimes cannot be within the legislative contemplation to deprive a person of his or her fundamental right, the right to travel.
42. So here comes into play the passport authority's discretion. He ought, I reckon, exercise discretion in evaluating the gravity and depravity WPC No.28207 OF 2018 19 of the crime and, then, decide whether the pending crime must result in variation, impounding, or revocation of the passports or the travel documents.
Conclusion:
43. Here, I see no such procedure adopted. The Department may have a justification: the petitioner rushed to this Court soon after the Ext.P6 notice. But that possible stand does not stand scrutiny. The Passport Officer in the Statement filed before the Court maintains that he was not satisfied with the explanation Jayasoorya offered. And that explanation was for an umpteenth time. Even without an express order of impounding or revocation, now, I am told, the Web Portal will show the status of Jayasoorya's passport as impounded. A practice that cannot be sustained.
44. The Central Government Counsel has stressed on the practical difficulties in returning the impounded passport. He contended, as did the counsel in Charanjit Kaur, that "impounding the passport meant a permanent deprivation of the passport." In other words, even if the Court holds the impounding illegal, the passport holder must apply afresh and get a new one. But on this count, the Supreme Court in Charanjit Kaur took a different view. It has held that "it is always open to the authorities WPC No.28207 OF 2018 20 concerned to review the impounding order."
45. So I hold that the Passport Officer shall release the Passport, for the impounding stands judicially nullified. Nevertheless, if the systemic problems remain a hurdle to release the passport, the Passport Officer shall inform Jayasoorya to apply afresh and, thus applied, he shall reissue a fresh passport, so to say, with no time-lag--preferably in 15 days. I, therefore, allow the writ petition. No order on costs.
Sd/-
DAMA SESHADRI NAIDU JUDGE APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE
PASSPORT OF THE PETITIONER BEARING NO.
H0834004 ISSUED ON 22.10.2008.
EXHIBIT P2 TRUE COPY OF THE NEW PASSPORT OF THE
PETITIONER BEARING NO. Z4326062 ISSUED ON
30.11.2017.
EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE DATED
1.1.2018 BEARING NO. SCN/306534907/18.
EXHIBIT P3 A TRUE COPY OF THE REPLY GIVEN BY THE
PETITIONER DTD. 9.1.2018 TO EXT. P3 SHOW
CAUSE NOTICE ISSUED BY THE REGIIONAL
PASSPORT OFFICE.
EXHIBIT P4 TRUE COPY OF THE SHOW CAUSE NOTICE DATED
6.2.2018 BEARING REFERENCE NO.
SCN/306690985/18
WPC No.28207 OF 2018 21
EXHIBIT P4 A TRUE COPY OF THE REPLY LETTER PREFERRED BY
THE PETITIONIER DTD. 23.2.2018 TO EXT.P4
SHOW CAUSE NOTICE ISSUED BY THE REGIIONAL
PASSPORT OFFICE.
EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE DTD.
28.3.2018 BEARING REFERENCE NO.
SCN/306898373/18.
EXHIBIT P5 A TRUE COPY OF THE REPLY PREFERRED BY THE
PETITIONER DTD. NIL
EXHIBIT P6 TRUE COPY OF THE SHOW CAUSE NOTICE DATED
20.6.2018 BEARING REFERENCE NO.
SCN/307271993/18.
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