Madras High Court
Selvakumar vs The Regional Passport Officer on 11 September, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
W.P(MD)No.22011 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.22011 of 2023
Selvakumar ... Petitioner
Vs
1.The Regional Passport Officer,
Regional Passport Office,
Bharathi Ula Veethi,
Race Course Road,
Madurai – 625 002.
2.The Inspector of Police,
K.Puduppatti Police Station,
K.Puduppatti,
Pudukkottai District. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus, directing the first
respondent to issue a passport to the petitioner by processing his
application in File No.MD1065554907523 based on his
explanation/representation dated 29.08.2023 within a time limit
stipulated by this Court.
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W.P(MD)No.22011 of 2023
For Petitioner :Mr.E.Balasubramanian
For R-1 :Mr.S.Paramasivam,
Senior Panel Counsel
For R-2 :Mr.P.Kottaichamy,
Government Advocate
ORDER
With the consent of both sides, this Writ Petition is taken up for final disposal at the admission stage itself.
2. The petitioner's application for grant of passport was not considered by the Passport Authority, on the ground that FIR is pending as against this petitioner.
3. The petitioner has applied for issuance of passport on 10.07.2023 and on the report of the police, the first respondent has called upon the petitioner to offer his explanation with regard to the criminal case which has been noted in the police verification report. 2/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.22011 of 2023
4. The petitioner without appearing before the first respondent has filed this writ petition for a mandamus directing the first respondent to issue passport to the petitioner.
5. The learned Standing Counsel appearing for the first respondent submitted that the police has informed that the petitioner has involved in the criminal case, however, the same has not been mentioned in the application, therefore, this petitioner was called upon to offer his explanation with regard to the criminal case.
6. The learned Government Advocate (Crl.side) appearing for the second respondent submitted that the petitioner has involved in the criminal case in Cr.No.23 of 2020 on the file of the K.Puduppatti Police Station under Section 379 IPC r/w 21(1), 21(2) of Mines and Minerals Act, 1957 and the same is under investigation.
7. Pendency of an FIR, by itself, cannot be a ground to refuse the passport. The Passport Authority can refuse the passport and any travel documents under Section 6 of the Passport Act, 1967. Section 3/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.22011 of 2023 6(2)(F) of the Act would be relevant and the same is extracted as under:-
“6.Refusal of passports, travel documents, etc- ...
(2)Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely -
...
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a Criminal Court in India.”
8.The above provision enables the Passport Authority to refuse the 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 is pending before a Criminal Court. Registration of an FIR on the police files, based on a complaint, cannot be construed as a proceedings pending before the Criminal Court. 4/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.22011 of 2023
9.The role of the Court pending the investigation has been discussed by various Courts. In W.Jaihar William v. State of Tamil Nadu [2014 (2) CWC 684], this Court has held as follows:-
“8. ... It is well settled legal principle that mere pendency of FIR cannot be construed as pendency of criminal proceedings in respect of the offences alleged to have been committed by the applicant before the Criminal Court. Only after the Court takes cognizance of the offence alleged to have been committed by the applicant, as stipulated under Section 190 of Cr.PC., it can be construed as 'proceedings pending before the Court'”
10.A Division Bench of this Court in Arumugam v. Regional Passport Officer, Madurai [W.A(MD)No.301 of 2018, dated 27.03.2018], has held as follows:-
“8. ... mere pendency of the criminal proceedings cannot be construed as pendency of the criminal proceedings. The decisions relied on for reaching the said conclusion in the above cited decision, would also disclose that unless cognizance is taken by the concerned Magistrate, it does not amount to pendency of the criminal proceedings. Admittedly, in the case on hand, the case is in 5/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.22011 of 2023 FIR stage and even for the sake of arguments, subsequently, the charge sheet has been filed, as on the date of submission of the application for passport, only FIR is pending and it cannot be construed as pendency of a criminal case and it cannot be said that the petitioner has suppressed the material fact of pendency of the criminal case.”
11.In fact, the Ministry of External Affairs, Government of India, has issued a Circular dated 10.10.2019, wherein, the following instruction was issued:-
“5. In view of the above, the following instructions may be adopted while processing the passport applications in respect of those applicants who may have criminal proceedings pending before a criminal court in India:
...
(vi) ... 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.” 6/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.22011 of 2023 Therefore, the Passport Authority is not justified in not deciding the application filed by the petitioner for passport by referring the criminal case.
12.Ordinarily, the duration of a passport as per Rule 12 of the Passport Rules is for a period of 10 years. In the event if the applicant is facing any criminal proceedings, the passport may be issued by restricting the period.
13.Accordingly, this writ petition is allowed with a direction to the Passport Authority to issue passport to this petitioner, by considering his application, within a period of twelve weeks from the date of receipt of a copy of this order.
NCC : Yes / No.
Index : Yes / No. 11.09.2023
Internet:Yes
am
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W.P(MD)No.22011 of 2023
To
The Inspector of Police,
K.Puduppatti Police Station,
K.Puduppatti,
Pudukkottai District.
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W.P(MD)No.22011 of 2023
B.PUGALENDHI, J.
am
Order made in
W.P(MD)No.22011 of 2023
11.09.2023
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