Madras High Court
N.Pandiganesan vs The Inspector Of Police on 24 June, 2015
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.06.2015
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
Crl.O.P(MD).No.8723 of 2015
N.Pandiganesan ...Petitioner/Petitioner/Accused
Vs
The Inspector of Police,
Rajapalayam North Police Station,
Rajapalayam,
Virudhunagar District. ...Respondent/Respondent/Complainant
Criminal Original Petition filed under Section 482 of the Criminal
Procedure Code to call for the records and set aside the order passed by the
learned Judicial Magistrate, Rajapalayam, dated 09.04.2015 in Cr.M.P.No.778
of 2015 in C.C.No.87 of 2012 and allow the said petition.
!For Petitioner :Mr.N.Dilip Kumar
^For Respondent :Mrs.S.Prabha
Government Advocate (Crl.side)
:ORDER
This petition has been filed under Section 482 Cr.P.C, to call for the records and set aside the order passed by the learned Judicial Magistrate, Rajapalayam, dated 09.04.2015 in Cr.M.P.No.778 of 2015 in C.C.No.87 of 2012 and allow the said petition.
2. Heard the learned Counsel appearing for the petitioner and the learned Government Advocate (criminal side) appearing for the respondent.
3. The petitioner has been arrayed as accused in Crime No.487 of 2011 for the offences under Section 279, 337, 338 and 304(A) IPC. As the petitioner's parents are residing in abroad, seeking permission for issuance of passport, the petitioner filed an application before the trial Court. The request made by the petitioner was rejected on the ground that the case is pending and the petitioner would evade the appearance. Challenging the same, the petitioner is before this Court.
4. The learned Counsel appearing for the petitioner submits that as per the provisions of the Passports Act, especially, Sections 6(2)(f) and 22(a) of the Passports Act, 1967, pendency of the criminal case is not a bar for issuance of passport after appropriate permission from the Court concerned to go abroad, as per the Notification issued by the Central Government. Reliance has been made on the decisions of the Bombay High Court and Gurajart High Court reported in AIR 1997 Bomaby 181 and AIR 2003 Gujarat 108.
5. The learned Counsel appearing for the petitioner also relied upon the judgment passed by this Court in W.P(MD)Nos.11913 and 11914 of 2010 dated 26.04.2011 as well as the subsequent order passed in W.P(MD)No.1547 of 2012 dated 03.09.2012. In the matter of Dhiren Baxi -vs- Regional Passport Officer, Ahmedabad reported in AIR 2003 Gujarat 108, after considering the similar case it is held as follows:
?... Accordingly, it is directed that in all cases covered by Section 6(2)(f) the Passport Authority shall forthwith inform the applicant about his right to apply to the concerned Criminal Court for permission to travel abroad in terms of the Notification dated 25th August, 1993. In case, the applicant demands a copy of the Notification, same shall be supplied by the Passport Authority subject to payment of charges. Needless to mention that it will be open for the applicant to approach the Criminal Court, where Criminal Case against him is pending, for permission to travel out of India. Even if he has not received summons from the Criminal Court, it will be open for the applicant to apply to that Court for a limited purpose of issuing the necessary orders for grant and/or renewal of passport. Considering the fact that the matter involves the fundamental right of the applicant, the concerned Court shall decide such application as expeditiously as possible and preferably within four weeks from the date of receipt of such application, after notice to the prosecution. In case, the Criminal Court passes an order for issuance of passport, the Passport Authority shall forthwith issue the passport to the applicant subject to the terms and conditions mentioned in the notification but without making any endorsement on the passport about the pending Criminal Case."
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, permit 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 criminal Court for permitting such applicant to go abroad 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.
11. Mr. Purohit submitted that initially the petitioner approached the Magistrate for permitting him to go abroad, but, at that time, the same was rejected on the ground that he has not imposed any condition to the effect that he cannot go abroad. However, in view of the factual aspect, as discussed above, the petitioner is permitted to apply for a specific purpose, allowing him to go abroad for a limited period, which he may indicate in his application and the Magistrate may decide such application on its own merits.
In my view, the order of the Magistrate will be necessary in view of the Notification of the Central Government, as indicated above, and on the basis of such order, the Passport Authority is required to decide the application of the petitioner for issuance of passport, keeping in mind the observations made in this order, as well as the Notification issued by the Government in this behalf. If any such application is made before the concerned Magistrate, the Magistrate may decide the same in accordance with law and expeditiously within a period of two months from the date of receipt of such application from the petitioner. The Magistrate may pass appropriate order whether such permission is required to be given, and if yes, for how much period such permission is to be granted. It will be open for the petitioner to place reliance on this order at the time of submitting his application before the Magistrate. "
6. This Court in W.P.No.11913 and 11914 of 2010 etc., dated 26.04.2011 in a writ petition filed, after making the reliance upon the decision of the Honourable Punjab and Haryana High Court and after taking note of the Central Government notification ,was pleased to hold as follows:
"19. From the above provision, it is made clear that the authority is having power to refuse to issue Passport to an applicant if there is any proceeding in respect of an offence alleged to have been committed by him are pending before a criminal Court in India. However, the above notification issued in furtherance of clause (f) of sub-section (2) of Section 6 of the Act clarified the position that the Central Government is of the opinion in public interest to exempt 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 above provisions.
20. This legal position as clarified by the Central Government would make it clear that when the applicant produces orders from the court concerned giving permission to depart from India, the authority competent to issue passport can consider the application in accordance with law.
21. The law is well settled after the decision of the Supreme Court in the case of Maneka Gandhi vs. Union of India reported in (1978) 1 SCC 248. In the said case it was held that the expression "personal liberty" in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19(1). The expression is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some such freedom has been raised to the level of fundamental right. Therefore, while holding that to travel abroad was a fundamental protection available to a person, the Supreme Court accepted the applicability of principle of reasonableness in placing certain restriction under the due process of law including Section 10(3)(c) of the Act. Of course, it was subjected to the basic rule of law of Audi Alteram Partem. The provision under Section clause
(f) of sub-section (2) of Section 6 of the Act does not offend the constitutional mandate in any way. It also does not vest the authorities with arbitrary exercise of power. The Pendency of a case before the criminal Court, seen in the light of police report, would be a sufficient ground for the authorities to act and in its wisdom even decline issuance of the passport. Exercise of such jurisdiction would hardly be open to judicial review unless such decision was palpably erroneous or was offending the basic rule of law.
22. In the instant case, the stand taken by the respondent is that the applications for passport have not been rejected, however, in view of pendency of criminal case, the applications of the petitioners are kept pending and unless the applicants produce the necessary permission orders from the competent court to depart from India, it is not proper for the authority to consider the applications for issuance of passport."
7. Though the learned Counsel appearing for the petitioner submitted that the records produced would show that the petitioner is a Juvenile, this Court is not inclined to go into the matter. The learned Counsel appearing for the petitioner submitted that an application is filed before the Judicial Magistrate, Rajapalayam, in this regard.
8. If that is the case, the Court concerned ought to have passed an order at the earliest point of time even before passing the order under challenge before this Court.
9. Be that as it may, a direction is issued to the learned Judicial Magistrate, Rajapalayam, to pass appropriate orders on the pending application filed made by the petitioner on the ground of Juvenile within a period of four weeks from the date of receipt of a copy of this order. The order impugned herein is set aside and consequently a direction is issued to the learned Judicial Magistrate, Rajapalayam, to issue a 'No Objection Certificate, to the petitioner within a period of two weeks from the date of receipt of a copy of this order.
10. With the above directions, this Criminal Original Petition is allowed.
To
1.The The Inspector of Police, Rajapalayam North Police Station, Rajapalayam, Virudhunagar District.
2. The Judicial Magistrate, Rajapalayam..