Gujarat High Court
Mafatbhai Ranchhodbhai Patel vs Union Of India on 22 August, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/CA/8703/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 8703 of 2014
In
SPECIAL CIVIL APPLICATION NO. 9101 of 2014
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MAFATBHAI RANCHHODBHAI PATEL....Applicant(s)
Versus
UNION OF INDIA....Respondent(s)
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Appearance:
MR PREMAL R JOSHI, ADVOCATE for the Applicant(s) No. 1
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 22/08/2014
ORAL ORDER
1. In present application, the applicant has prayed, inter alia, that:
"12(B) Your Lordships will be pleased to opponent authority to extend the validity of his passport bearing No.H3925128 for a period of one year during the pendency of the main petition in the interest of justice;"
2. To support and justify the request made in the petition, the petitioner has averred, inter alia, that:
"3. The petitioner states that the petitioner is Page 1 of 10 C/CA/8703/2014 ORDER having his passport bearing No.H3925128 which is issued by the respondent authority on 15.4.2009. The said passport is valid upto 14.4.2009.
4. The petitioner states that one criminal case being M. Case No.1 of 2007 for the alleged offence punishable under sections 406, 420, 465, 467 and 478 of Indian Penal Code came to be registered against the petitioner and others with Borsad Police Station. In the said complaint, only allegation against the petitioner is that he is guarantor of one of the accused who made default in the bank. Accordingly, the bank lodged the complaint against the original borrower accused and the present petitioner being the guarantor is shown as accused.
5. The petitioner approached the court of learned Additional Sessions Judge and Presiding officer (Fast Track Court), Anand for anticipatory bail by way of filing Criminal Misc. Application No.336 of 2009. Learned trial Court was pleased to release him on anticipatory bail with condition to obtain the regular bail. Accordingly, the petitioner moved the regular bail being Criminal Misc. Application No.369 of 2009 before the court of learned Additional Sessions Judge and Presiding Officer (Fast Track Court), Anand. Learned Additional Sessions Judge and Presiding Officer (Fast Track Court), Anand by judgment and order dated 13.7.2009 was pleased to release the petitioner on regular bail on certain terms and conditions. As per condition No.3, the petitioner was directed not to leave the limits of Gujarat State wihtout prior permission of the Honourable Court.
6. The petitioner states that the original borrower paid full amount with interest to the bank and the settlement has also been arrived at between the original borrower and the bank. The bank also submitted the application stating that the bank has withdraws the suit and the complaint.
7. The petitioner states that the respondent authority imposed the penalty of Rs.1,000/ upon the petitioner since the reference of the criminal case was not made in the application through oversight. By letter dated 10.6.2009, the respondent authority imposed the penalty of Rs.1000/ and also directed to surrender the passport.
8. The petitioner states that the respondent authority renewed the passport No.H3925128 on 15.4.2009 and the same is going to be expired on 14.4.2019. Initially, the learned Sessions Judge imposed the condition while granting the regular bail to the Page 2 of 10 C/CA/8703/2014 ORDER petitioner not to leave Gujarat State without prior permission of the Honourable Court. The petitioner earlier approached the learned Sessions Judge for permitting him to travel abroad. Accordingly, the petitioner was permitted to travel abroad and the petitioner came back within time limit.
9. The petitioner states that the petitioner also approached the learned Sessions Judge by way of filing Criminal Misc. Application No.535 of 2011 permitting him to leave Gujarat State as he was desirous to go to USA. The Learned 2nd Additional Sessions Judge, Anand by judgment and order dated 8.9.2011 was pleased to permit the petitioner to leave Gujarat State and permitted to go to USA for a period of six months.
10. The petitioner states that in pursuance of the order dated 8.9.2011, the respondent authority made endorsement vide entry No.589/60/10 in the passport of the petitioner by observing that the holder is permitted to travel abroad upto 8.3.2012. Accordingly, the petitioner traveled USA and returned in time.
11. The petitioner states that the petitioner approached this Honourable Court by way of filing Criminal Misc. Application No.3279 of 2012 for modification of the order dated 26.3.2012. This Honourable Court by oral order dated 26.3.2012 deleted condition No.3 imposed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Anand in order dated 13.7.2009 passed in Criminal Misc. Application No.369 of 2009.
12. The petitioner states that the petitioner approached the respondent authority on 6.3.2012 to surrender his passport. However, the respondent authority did not accept it. The petitioner approached the respondent authority on 30.3.2012 with a request to delete the endorsement which was made in his passport No.H3925128 being entry No.589/60/10 whereby it is observed that the holder is permitted to travel abroad upto 8.3.2012.
13. The petitioner humbly submits that the respondent authority refused to make entry in pursuance of the order dated 26.3.2012 passed by this Honourable Court in Criminal Misc. Application No.3279 of 2012 and instructed the petitioner to obtain specific order from the Honourable Court to delete entry No.589/60/10 which is entered in his passport to the effect that the holder is permitted to travel abroad upto 8.3.2012."
Page 3 of 10 C/CA/8703/2014 ORDER3. Learned advocate for the petitioner submitted that permit granted by the authority in the United States of America is valid until 30.8.2014. Therefore, the petitioner is required to reach United States of America on or before 30.8.2014 so as to complete the formalities for renewal/extension of the permit.
4. In this view of the matter, the petitioner seems to have made made an application for renewal/extension of validity of his passport for one year.
5. According to the petitioner's grievance, the authorities have not considered the request of the petitioner to extend the period/validity of passport.
6. It is not in dispute that the criminal case which is registered as M. Case No.1/2010 alleging offence under Sections 406, 420, 465, 467 and 478, is pending.
Page 4 of 10 C/CA/8703/2014 ORDER7. The said case is pending before the learned trial Court at Borsad.
8. It is also not in dispute that the petitioner is enlarged on bail.
9. After hearing learned advocate for the petitioner, the petitioner asked to serve a copy of the petition to Assistant Solicitor General / learned Senior Standing Counsel for the respondent authorities.
10. Accordingly, on service of the petition, Mr.Vyas, learned advocate has appeared and filed an affidavit.
11. In the affidavit dated 23.7.2014, the deponent has stated, inter alia, that:
"4. I say that the petitioner herein has been arraigned as an accused and facing criminal proceedings pending before Hon'ble Addl. Sessions Court, Anand and later after Hon'ble High Court's directions, the petitioner wishes for reissue of passport without Page 5 of 10 C/CA/8703/2014 ORDER submitting Hon'ble Court's permission allowing petitioner to travel abroad though a criminal proceeding is pending against the petitioner/passport seeker in the court of law in India, and this office had already renewed the passport and entries of reference no.589/60/10 were deleted in passport No.H3925128 as per directions of Hon'ble High Court to the petitioner.
5. I say that the petitioner has not applied and he is not refused for passport facilities but is asked to furnish Hon'ble Court's acquittal order (final court judgment) or Court permission for the criminal proceedings pending against the Passport seeker, and this is the discretion of Hon'ble Court whether such person against whom an offence alleged to have been committed by them are pending before a criminal court in India should be permitted to travel abroad or not and permission should be granted for specific period as mentioned in the Gazette notification issued in terms of G.S.R.
6. I say that this office is duty bound if any applicant applied for Passport facility with Hon'ble Court permission / NOC with specific period as granted by Hon'ble Court, thus petitioner has neither applied for reissue to this office for Passport facility along with the final Court's judgment order acquitting him of criminal charges or NOC/Traveling permission from Hon'ble trial Court nor this office has refused to issuance of Passport to the petitioner."
12. The deponent has also placed on record a copy of the Notification dated 25.8.1993, which reads thus:
"MINISTRY OF EXTERNAL AFFAIRS NOTIFICATION New Delhi, the 25th August 1993 G.S.R. 570 (E). In exercise of the process conferred by clause (a) of Section 22 of the Passport Act 1967 (15 of 1967) and in suppression of the notification of the Government of India in the Ministry of External Affairs No. G.S.R. 298 (E), dated the 14th April, 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts Page 6 of 10 C/CA/8703/2014 ORDER 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 subsection (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 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; or
(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 renewal 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 mean time, 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 of travel abroad;
(d) the said citizen shall give 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 to force of the passport so issued. (Emphasis supplied) [No. VI/401/37/79] I.K. PONAPPA, JT, Secy, (CPV)"Page 7 of 10 C/CA/8703/2014 ORDER
13. On examination of the said notification, it comes out that the applicant against whom proceedings in any Crimnal Court are pending, is required to submit an order from the 'court concerned' permitting such person to depart from India.
14. Learned advocate for the petitioner placed reliance on clause No.(c) of the said notification, however, the said clause is to be read with the primary condition that the order passed by the concerned court is required to be submitted to the concerned authority.
15. In present case, it is not in dispute that the criminal case which is pending against the petitioner is pending in the Court of learned Magistrate at Borsad and that, therefore, as per the aforesaid notification dated 25.8.1993, the concerned court would be the court where the criminal case is presently pending.
Page 8 of 10 C/CA/8703/2014 ORDER16. It is true that by subsequent orders passed by this Court, the condition which required the petitioner to submit the passport has been deleted, however, position that the criminal case is pending, subsists and as per the notification dated 25.8.1993 and if the criminal case is pending, then the applicant is to submit appropriate order from the concerned court.
17. Therefore, it would be proper for the petitioner to make appropriate application before the concerned court where the proceedings are pending.
18. Under the circumstances, present application is disposed of with the liberty to the petitioner to take out appropriate application before the learned Court where the criminal case is pending.
If and when such application is submitted, the learned Court would consider the same in accordance with law and pass appropriate order as expeditiously as possible. It would be open to Page 9 of 10 C/CA/8703/2014 ORDER the applicant - petitioner herein to make appropriate request for early order to the learned Court on the ground that the applicant -
petitioner is required to travel before 30.8.2014.
With the aforesaid clarification, the application is disposed of.
(K.M.THAKER, J.) Bharat Page 10 of 10