Karnataka High Court
Palagudu Venkata Basava Rao vs Regional Passport Officer on 26 June, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 103665 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 103665 OF 2023 (GM-RES)
BETWEEN:
PALAGUDU VENKATA BASAVA RAO,
S/O. P.RAMABRAHMAM,
AGED ABOUT 65 YEARS,
OCC: RETD., R/O. JEERALA KALGUDI CAMP,
TQ. AND DIST: KOPPAL-583227.
...PETITIONER
(BY SRI. K.L.PATIL, ADVOCATE FOR
SRI.S.S.BELURMATH, ADVOCATE)
AND:
1. REGIONAL PASSPORT OFFICER,
BENGALURU, 8TH BLOCK, 80 FEET ROAD,
KORAMANGALA, BENGALURU-560095.
2. REGIONAL PASSPORT OFFICER,
PASSPORT SEVA KENDRA,
ROHAN
HADIMANI HUBBALLI-DHARWAD,
T
High Court
E-BLOCK, LOWER GROUND FLOOR,
of
Karnataka,
IT PARK, OPP. INDIRA GLASS HOUSE,
Dharwad
HUBBALLI-580029.
...RESPONDENTS
(BY SRI.MRUTYUNJAYA TALA BANGI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO, A) ISSUE WRIT IN
THE NATURE OF CERTIORARI TO QUASH THE
ACKNOWLEDGEMENT LETTER DATED 04/05/2023 ISSUED BY
RESPONDENT NO.2 VIDE ANNEXURE-C.B) ISSUE DIRECTIONS AS
WRIT OF MANDAMUS/DIRECTION DIRECTING THE RESPONDENT
TO ISSUE THE PASSPORT OF THE PETITIONER WITH IMMEDIATE
EFFECT.
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WP No. 103665 of 2023
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner questioning the acknowledgment letter dated 04.05.2023 issued by the respondent No.2-Regional Passport Officer.
2. The petitioner applied for issuance of passport by way of online submission and appointment being fixed on 04.05.1993 at 9.45 a.m. Upon verification of the documents, Annexure-C came to be issued by the respondent No.2 with an endorsement " On hold remarks by Granting Officer, Court order for short valid Passport"
3. It is submitted by the learned counsel for the petitioner that the petitioner was convicted by the III Addl. District and Sessions Judge, Ballari sitting at Hosapete in Spl. case No.5004/2014 for the offence punishable under Section 13(1)(d) r/w Section (2) of the Prevention of Corruption Act. The said judgment is challenged by the petitioner which is pending in Crl.A.No.100308/2019 in -3- NC: 2023:KHC-D:6320 WP No. 103665 of 2023 which case, the sentence of the petitioner has been suspended and he has been granted bail by order dated 21.08.2019 and the appeal is pending adjudication.
4. It is the contention of the learned counsel for the petitioner that petitioner's relative is residing in Pleasanton, California in United States of America and that there is a house warming ceremony fixed on 15.09.2023 for which petitioner and his wife are invited by his relatives. Hence, he has applied for passport to travel out of the country. The grievance of the petitioner is that his constitutional right under Article 21 has been curtailed and he has been refused issuance of passport merely because criminal case is pending against him, he cannot be disqualified from holding a passport as forfeited as the authorities have disqualified the petitioner for issuance of passport. As per Annexure-C, the authorities have directed him to obtain 'Court order for short valid passport'. Therefore, learned counsel for the petitioner submits that respondents have declined the issuance of -4- NC: 2023:KHC-D:6320 WP No. 103665 of 2023 passport which is the fundamental right provided by the Constitution of India, which requires to be set aside by this Court.
5. Learned Assistant Solicitor General of India Mr. Mrythunjaya S Tatabangi vehemently contends that the writ petition itself is not maintainable as no order is passed by the passport authority declining the request made by the petitioner for issuance of passport. The respondents have issued an acknowledgement letter wherein it is stated that the petitioner to obtain 'Court order for short valid passport.
6. When a person applies for a passport an enquiry and verifications are conducted petitioner has divulged himself with regard to pendency of the criminal matter in the criminal court, there is a procedure prescribed under the passport act which authorizes the passport authority to refuse issuance of passport or traveling document under Section 6(2)(f) but whereas, in the present case, respondents have not refused the issuance of passport, -5- NC: 2023:KHC-D:6320 WP No. 103665 of 2023 they merely asked the petitioner to obtain court order for issuance of short valid passport.
7. 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:
"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 -6- NC: 2023:KHC-D:6320 WP No. 103665 of 2023 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:-
(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 -7- NC: 2023:KHC-D:6320 WP No. 103665 of 2023 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 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.-8-
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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 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 -9- NC: 2023:KHC-D:6320 WP No. 103665 of 2023 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 justification and approval to be recorded in writing.
(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
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NC: 2023:KHC-D:6320 WP No. 103665 of 2023 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 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
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NC: 2023:KHC-D:6320 WP No. 103665 of 2023 '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 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
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6. The above instructions may be noted for strict compliance with immediate effect."
8. 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 applications which may have criminal cases pending before the Criminal Court in India. It is not necessary for this Court to extract the instructions given in the said notification for the reason that no endorsement has been issued by the passport authority in the present case rejecting or refusing the issuance of passport in favour of the petitioner. Even the endorsement i.e. given is to obtain 'court order for short valid passport'.
9. In view of the fact that the petitioner is convicted for criminal offence and having been released on bail and the
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NC: 2023:KHC-D:6320 WP No. 103665 of 2023 sentence being suspended in the criminal proceedings stated supra, he is at liberty to move or mention before the Appellate Court in which the criminal appeal No.100308/2019 is pending for necessary permissions.
10. Accordingly, I pass the following:
ORDER The writ petition is disposed of.
Petitioner is granted liberty to make an application before the Court in which Crl.A.No.100308/2019 is pending. On such application/petition filed, the same would be considered in accordance with law. All contentions are kept open.
Learned counsel Sri.Mryutunjaya S. TataBangi is permitted to file memo of appearance within three weeks.
Sd/-
JUDGE HMB List No.: 1 Sl No.: 18