Allahabad High Court
Shahil vs State Of U.P. And Another on 26 November, 2024
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:185362 Court No. - 77 Case :- APPLICATION U/S 482 No. - 18428 of 2024 Applicant :- Shahil Opposite Party :- State of U.P. and Another Counsel for Applicant :- Wahid Jamal Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Pachori,J.
1. Shri Wahid Jamal, learned counsel for the applicant and Shri A.K. Rai, learned A.G.A. for the State.
2. Present application under Section 482, Cr.P.C. has been filed to quash the order dated 4.5.2024 passed by Chief Judicial Magistrate, Aligarh in Criminal Case No. 191 of 2020, whereby the permission to go abroad has been dismissed on the basis of criminal case registered as case crime No. 191 of 2020, under Sections 149, 150, 151, 188, 291, 341, I.P.C., P.S. Quarsi, District Aligarh.
3. Learned counsel for the applicant submits that the impugned order has been passed without considering the facts, circumstances and without notification and guidelines, which has been issued by the Central Government with regard to permission to go abroad in the situation when the case is registered against the applicant.
4. It has been stated that the opposite party No. 2 lodged an F.I.R. on 25.2.2020 under Sections 341, 188, I.P.C. and Section 83 of Child Protection Act, 2015 against 12 named as well as 150 unnamed men and women in respect to alleged incident dated 24.2.2020. The applicant was not named in the F.I.R. Name of the applicant was added during the investigation and the Investigating Officer submitted the charge sheet under Sections 341, 188, 149, 150, 151 and 291, I.P.C. The applicant has applied before the Passport Officer for issuing passport prior to the incident and the passport has been issued on 10.2.2020. When the applicant applied for Police Clearance Certificate as he was given an offer of job in State of Kuwait and the Visa has been issued on 12.3.2024, the police intimated the Passport No. U64443459 Authority about the criminal case pending against the applicant and because of the pendency of the case, Police Clearance Certificate was not issued. The Passport Authority issued a letter to the applicant on 19.3.2024 calling upon the explanation. The applicant on receiving the letter, submitted his reply stating that at the time of applying the Passport No. U64443459 and till the date of issuing of Passport i.e. 10.2.2020, no criminal case was pending against him and after issuing the passport, the F.I.R. was lodged on 25.2.2020 and during the course of investigation, name of the applicant was added in the charge sheet.
5. The applicant sought a regular bail and was released on bail by the court below. As the Visa has been granted by the State of Kuwait to the applicant, he applied seeking a permission to visit Kuwait and the learned magistrate rejected the application holding that the criminal case is pending against the applicant.
6. Learned counsel for the applicant relied upon the judgement of this Court in Salim Khan Vs. Union of India and others, 2019 (132) All Law Report 286 (D.B.) in which this Court has permitted the petitioner to move an application for grant of permission to go abroad, before the court concerned where the criminal proceeding was pending and if permission is granted then the petitioner shall be given liberty to produce before Passport Officer along with the permission granted by the court for issuance of passport. The relevant part of the order of Bench of this Court is quoted hereinbelow:-
"The argument that Section 6(2)(f) was arbitrary and unreasonable was repelled, however, considering the Notification dated 25.08.1993 quoted hereinabove it was held that the restriction under Section 6(2)(f) was not absolute but the same can be relaxed in appropriate cases with the permission of the Court in which the criminal proceedings are pending. The Court in fact held that the object behind the aforesaid provisions appeared to be that permitting a person facing criminal charges to go abroad was against the interest of the State and Society at large, however, as already mentioned hereinabove in view of the Notification dated 25.08.1993 it was held that the restriction was not absolute.
In this view of the matter, we are of the view that the petitioner should move an appropriate application before the Court of criminal jurisdiction where the trial is pending against him seeking permission to go abroad. If such permission is granted then the petitioner may move appropriate application before the competent Authority of the Passport department of the Government of India citing the judgment referred hereinabove as also the Notification dated 25.08.1993 for issuance of a Passport which shall be considered accordingly in the light of the law on the subject."
7. In the light of the above judgment, it is submitted by the learned counsel for the applicant that the order impugned passed by CJM, Aligarh is bad in the eye of law.
8. The Govt. of India has promulgated a notification no. GSRS70(E). The guidelines of the said notification are quoted herein below:-
"G.S.R. 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. 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 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 the 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 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 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 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 in force of the passport so issued.
[No.VI/401/37/79] L.K. PONAPPA, Jt. Secy. (CPV)"
The provisions of Section 22 of the Act, 1967 read as under:-
"22. Power to exempt.--Where the Central Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette and subject to such conditions, if any, as it may specify in the notification,--
(a) exempt any person or class of persons from the operation of all or any of the provisions of this Act or the rules made thereunder; and
(b) as often as may be, cancel any such notification and again subject, by a like notification, the person or class of persons to the operation of such provisions."
9. I have gone through the order and other relevant material. The applicant is an accused of Case No. 191 of 2020, under Sections 149, 150, 151, 188, 291, 341, I.P.C., P.S. Quarsi, District Aligarh. As per notification dated 25.8.1993, it was held that the restriction was not absolute.
10. In the light of above judgement, the application under Section 482, Cr.P.C. is disposed of and order dated 4.5.2024 is, hereby quashed giving liberty to the applicant to move a proper application seeking permission to go abroad before the court concerned where the criminal proceeding against the petitioner is pending and if the permission is granted to the applicant by the court concerned, then the applicant may produce the permission before the Passport Officer, who shall consider the same in accordance with the Circular dated 25.8.1993 and pass appropriate order in this respect within a period of one month from the date of producing of the permission granted by the competent court.
11. With the aforesaid observations, the present 482 Cr.P.C. application stands disposed of finally.
Order Date :- 26.11.2024 T. Sinha