Gujarat High Court
Farha Wife Of Salim Ibrahim Sikora & 2 vs State Of Gujarat on 9 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/9874/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 9874 of
2016
[On note for speaking to minutes of order dated 05/05/2017 in
R/SCR.A/9874/2016 ]
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FARHA WIFE OF SALIM IBRAHIM SIKORA & 2....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR ANKUR Y OZA, ADVOCATE for the Applicant(s) No. 1 - 3
MS NISHA THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/06/2017
ORAL ORDER
1. By this Note for speaking to minutes some clarification is prayed for. While disposing of the writ application being Special Criminal Application No.9874 of 2016, the following was observed in paragraph 28. Paragraph 28 reads as under:
"28. The Trial Court is directed to handover the passports to the applicants at the earliest. The applicant no.1, while taking the possession of her passport along with the two passports of her two minor children, shall execute a personal bond of Rs.1 Lac and shall also furnish the correct address of her place of residence at South Africa after getting the same attested by the Embassy of the South Africa and also attested by the Indian Embassy at South Africa. The applicant no.1 shall also give an undertaking that she will appear before the Sessions Page 1 of 2 HC-NIC Page 1 of 33 Created On Sat Aug 12 19:33:26 IST 2017 1 of 33 R/SCR.A/9874/2016 ORDER Court without fail, in the event she is called upon to do so during the pendency of the acquittal appeal."
2. In paragraph 3 of the Note the following has been averred. Paragraph 3 reads as under:
"3. The Embassy of Republic of South Africa at India attests the documents of South Africa national only. Upon inquiry it was informed that the address of the petitioner who is an Indian National is not to be attested by the Embassy of Republic of South Africa. The condition that the petitioner has to furnish the address of her place of residence of South Africa after getting the same attested by the South African Embassy at India is not feasible to comply with."
3. In view of the same, the direction so far as getting the correct address at South Africa attested by the Indian Embassy at South Africa is deleted. Rest of the order shall remain as it is.
With the above this Note for speaking to minutes is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) Dolly Page 2 of 2 HC-NIC Page 2 of 33 Created On Sat Aug 12 19:33:26 IST 2017 2 of 33 R/SCR.A/9874/2016 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 9874 of 2016 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== FARHA WIFE OF SALIM IBRAHIM SIKORA & 2....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ========================================================== Appearance:
MR ANKUR Y OZA, ADVOCATE for the Applicant(s) No. 1 - 3 PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 05 /05 /2017 CAV JUDGMENT
1. By this application under Article 227 of the Constitution of India, the applicants have prayed for the following reliefs;Page 1 of 31
HC-NIC Page 3 of 33 Created On Sat Aug 12 19:33:26 IST 2017
3 of 33 R/SCR.A/9874/2016 CAV JUDGMENT "(A) The honourable court be pleased to issue appropriate writ, direction or order to declare that the condition no.(1) that upon renewal the passports are to be deposited with the trial court as well as condition no. (3) that pending appeal the petitioners shall not leave India without prior permission of the appellate court imposed vide order dated 28.03.2016 passed in Criminal Misc. Application No.218 of 2015 by the court of learned Additional Chief Metropolitan Magistrate, Court No.17, Ahmedabad be declared erroneous, illegal, unconstitutional and without jurisdiction.
(B) the honourable court be pleased to issue appropriate writ, direction or order to quash and set aside the condition no.(1) and (3) imposed by order dated 28.3.2016 passed in Criminal Misc. Application No.218 of 2015 by the court of learned Additional Chief Metropolitan Magistrate, Court No.17, Ahmedabad.
(C ) The Honourable Court be pleased to issue appropriate writ, direction or order to quash and set aside the order dated 06.12.2016 passed in Criminal Misc. Application No.4989 of 2016 by the Additional Sessions Judge, Court No.2, City Civil and Sessions Court, Ahmedabad as the same being arbitrary, unfair and unjust;
(D) the honourable court be pleased to issue appropriate writ, direction or order to release the passports of the petitioners and hand over to the petitioners their passports retained by the learned Additional Chief Metropolitan Magistrate, Court No.17, Ahmedabad in Criminal case No.1250 of 2010 pending Criminal Appeal No.210 of 2015 in the Sessions Court, Ahmedabad;
(E) pending this petition the honourable court be pleased to direct the learned Additional Chief Metropolitan Magistrate, Court No.17, Ahmedabad to release the passports of the petitioners and hand over the passports to the petitioners for the purpose of making application to the Embassy of South Africa for Visa;
Page 2 of 31HC-NIC Page 4 of 33 Created On Sat Aug 12 19:33:26 IST 2017 4 of 33 R/SCR.A/9874/2016 CAV JUDGMENT (F) Pending this petition the honourable court be pleased to grant ex-parte interim or ad-interim relief in terms of paragraph (e) above;
(G) The honourable court be pleased to grant any such other relief as deem fit in the interest of justice."
2. The applicant No.1 got married to one Salim Akhtar Ibrahim Sikora on 13th May, 2001. In the wedlock, the applicants Nos.2 and 3 were born. All the three applicants are holding the Indian passports issued by the Regional Passport Office, Ahmedabad. The husband of the applicant No.1 is a Zambian National. He is living and working at Pretoria, South Africa. The husband is serving in a company by name Shelv Craft. The husband is residing in South Africa on the "Permanent Resident Permit" bearing No.AKA760/13/PRP issued on 11.10.2013 by the Department of Home Affairs, Republic of South Africa.
3. In the year 2003, after the marriage, the applicant No.1 went to South Africa. For the period between 2004 and 2010, she, along with her two minor children, stayed at South Africa. In the year 2010, the applicant No.1 applied for renewal of the "Work Permit Visa" of the Republic of South Africa through an agent at South Africa. The Visa was renewed for the period between 31.12.2010 and 31.12.2013. The applicant No.1, along with her children, came back to India in March, 2011. After their return to South Africa, they were deported to India on the ground that the Work Permit Visa pasted on the passport of the applicant No.1 was not genuine. On arrival in India, a first information report came to be registered at the Sardarnagar Police Station, Ahmedabad being C.R. No.I-265 of 2011 for the offence punishable under sections 406, 420, 467, Page 3 of 31 HC-NIC Page 5 of 33 Created On Sat Aug 12 19:33:26 IST 2017 5 of 33 R/SCR.A/9874/2016 CAV JUDGMENT 468, 471 of the IPC and section 12 of the Indian Passport Act.
4. At the end of the investigation, charge-sheet was filed and the filing of the charge-sheet culminated in the Criminal Case No.1250 of 2012. The Criminal Case No.1250 of 2012 was tried by the learned Additional Chief Metropolitan Magistrate, Court No.17, Ahmedabad, and vide judgment and order dated 3rd March, 2015, the Trial Court acquitted the applicant No.1 herein of the offences punishable under sections 406, 420, 467, 468 and 471 of the Indian Penal Code. However, the Trial Court held the applicant No.1 guilty of the offence under section 12 of the Indian Passport Act and imposed a fine of Rs.2000/-.
5. The applicant No.1 herein deposited the amount of fine of Rs.2000/- with the Trial Court.
6. While acquitting the applicant No.1 herein, the Trial Court directed that on expiry of the appeal period, the passports of all the three applicants be handed over. The Trial Court also directed that till the expiry of the appeal period, the applicant No.1 shall furnish the bail of Rs. 5000/- with a solvent surety of the like amount.
7. The State of Gujarat, being dissatisfied with the judgment and order of acquittal, filed the Criminal Appeal No.210 of 2015 in the court of the learned City Sessions Judge at Ahmedabad. The same is pending as on date.
8. It appears from the materials on record that the applicant herein preferred the Criminal Misc. Application Page 4 of 31 HC-NIC Page 6 of 33 Created On Sat Aug 12 19:33:26 IST 2017 6 of 33 R/SCR.A/9874/2016 CAV JUDGMENT No.4478 of 2015 in the Criminal Appeal No.210 of 2015 filed by the State with the following prayers;
"(a) the honourable court be pleased to release the passports of the applicants seized, retained and impounded regarding the proceedings of Criminal Case No.1250 of 2012 and pending Criminal Appeal No.210 of 2015 and hand over the passports to the applicants on such reasonable terms and conditions as deemed fit in the interest of justice.
(b) the honourable court be pleased to grant any such other relief as deem fit in the interest of justice."
9. On 18.11.2015, the Sessions Judge passed the following order;
"Order Heard applicant directed to move trial court for M.M."
10. Thus, in view of the order passed by the learned Sessions Judge, the applicant herein filed the Criminal Misc. Application No.218 of 2015 in the court of the learned Additional Chief Metropolitan Magistrate, Court No.17, Ahmedabad and prayed for the following reliefs;
"(a) the honourable court be pleased to release the passports of the applicants and seized, retained and impounded regarding the the proceedings of Criminal Case No.1250 of 2012 and pending Criminal Appeal No.210 of 2015 and hand over the passports to the applicants on such reasonable terms and conditions as deemed fit in the interest of justice.
(b) the honourable court be pleased to grant any such other relief as deem fit in the interest of justice."
11. The learned Magistrate disposed of the said application Page 5 of 31 HC-NIC Page 7 of 33 Created On Sat Aug 12 19:33:26 IST 2017 7 of 33 R/SCR.A/9874/2016 CAV JUDGMENT vide order dated 22nd March, 2016 with the following directions;
"ORDER As per the order passed in Criminal Case No.1250/2012, the present application filed by the applicant/accused for getting the passport released is allowed. After keeping one true copy of the original passports of the applicant/accused as well as minor children in the record of an appeal and subject to the following conditions, it is ordered to handover the passports of the applicant/accused and children for the purpose of renewal.
Conditions:
1. On receipt of the renewed passport, the applicant/accused to deposit the same before the Court as the appeal is pending.
2. At the time of issuing the said passport to the applicant/accused, the Passport Officer to instruct the applicant/accused to deposit the passport issued by him to the Court.
3. The applicant/accused must not go abroad by using the said passport without prior permission of the appeal court.
4. The Regional Passport Officer and Sardarnagar Police Station be informed about the order."
12. Being dissatisfied, the applicants have come up with this application.
13. Mr. Ankur Oza, the learned counsel appearing for the applicants submitted that once the applicant No.1 is acquitted of all the charges, then mere pendency of the acquittal appeal filed by the State, should not be a ground for withholding the passports of the applicants. According to Mr. Oza, the action on Page 6 of 31 HC-NIC Page 8 of 33 Created On Sat Aug 12 19:33:26 IST 2017 8 of 33 R/SCR.A/9874/2016 CAV JUDGMENT the part of the Court is directly in conflict with Article 21 of the Constitution of India. In such circumstances, he prays that the impugned order be quashed and the Court be directed to handover the passports to the applicants.
14. On other other hand, this application has been vehemently opposed by Ms. Thakore, the learned APP appearing for the State.
15. Ms. Thakore submits that as the State has filed an acquittal appeal, no error, not to speak of any error of law could be said to have been committed by the Trial Court in not handing over the passports to the applicants.
16. According to the learned APP, once the passports are handed over, then the applicants would go back to South Africa and thereby put the State's acquittal appeal in jeopardy. The learned APP prays that there being no merit in this application, the same be rejected.
17. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Trial Court committed any error in passing the impugned order.
18. It appears from the materials on record that on registration of the acquittal appeal filed by the State, the Appellate Court has not asked the applicant No.1 herein to furnish any bail. In my view, the entire procedure adopted by both the courts below is incorrect and not tenable in law. There Page 7 of 31 HC-NIC Page 9 of 33 Created On Sat Aug 12 19:33:26 IST 2017 9 of 33 R/SCR.A/9874/2016 CAV JUDGMENT was no reason for the Appellate Court to relegate the applicants to the Trial Court for the purpose of release of their passports. Since the appeal has been filed in the Sessions Court, the Sessions Court, being the Appellate Court, should have passed an appropriate order as regards the passports of the applicants. I am of the view that the applicant No.1, being acquitted of all the charges, mere pendency of the acquittal appeal filed by the State, cannot be a ground to reject the prayer for release of the passports. The Trial Court could not have even asked the applicant No.1 to furnish the bail with a solvent surety of the like amount for the appeal period under section 437(6) of the Code. In this regard, the Trial Court overlooked a full bench decision of this Court in the case of Omprakash Tekchand Batra vs. State of Gujarat, 1998 (3) GLR 2031. I may quote the relevant observations;
"10. Bail can be granted by the High Court when the accused is acquitted only when the appeal is presented under Section 378 of the Code against the acquittal and the Court exercises its power of issuing warrant of arrest under Section 390 of the Code which would entail the lodgement of the accused in jail unless he was ordered to be released on bail by the High Court under that provision. The question of release of such person on bail can have no relevance until the acquittal appeal is presented and the warrant of his arrest is issued under Section 390 of the Code by the High Court directing that the accused be arrested and be brought before the Court for being committed to prison or admit him to bail. The High Court during the issue of an arrest warrant has thus, the power to admit the accused on bail when acquittal appeal is pending. This power is conferred to ensure that an accused against whom acquittal appeal has been filed may not abscond during the pendency of such appeal. The power under Section 390 of the Code can be exercised only after the appeal is presented and not before it. Therefore, when the High Court itself cannot direct arrest of a person acquitted or admit him to bail Page 8 of 31 HC-NIC Page 10 of 33 Created On Sat Aug 12 19:33:26 IST 2017 10 of 33 R/SCR.A/9874/2016 CAV JUDGMENT until appeal is presented against his acquittal, it obviously cannot direct the trial Court to arrest such accused or admit him to bail even though he is acquitted by the trial Court. The only contingency in which the convicting Court can grant bail is where the appeal is intended to be filed by the convict as provided by Section 389(3) of the Code. In cases of acquittal, there is no question of an appeal intended to be filed by the accused. There is no such specific provision to provide for bail or for making any such orders of detaining the accused in custody until he furnishes bail at the instance of the State even where acquittal appeal is intended to be filed and rightly so because it would be a grossly unjust and absurd situation where the trial Court acquits the accused and thereby orders him to be set at liberty under Section 354(1) and in the same breath orders such acquitted person to be confined in custody until he furnishes bail for a period of one year as per the directions issued in the present case, which period is even beyond the period of time where his liberty stands statutorily restored and constitutionally guaranteed. The liberty so regained, by virtue of his acquittal is required to be incorporated in the judgment of acquittal under Section 354(1)(d) of the Code and when the accused is found not guilty and acquitted, his liberty can never be fettered by linking with it any hackle of bail or bond unless an occasion arises by virtue of presentation of an acquittal appeal and a warrant of arrest is issued under Section 390 of the Code which would entail his lodgment in prison. The extent of injustice that a direction to insist on the acquitted person to furnish bail for his release, despite the fact that no acquittal appeal is presented under Section 378 and that it may not at all be filed as in the present cases, is evident from the fact that persons though acquitted and statutorily entitled to be set at liberty have to languish in jail though not guilty, for a period of one year which is even longer than the period of limitation prescribed for an acquittal appeal. No amount of "headaches" or inconvenience to the functionaries of the system that may be caused in serving notices or warrants when appeals are preferred, can ever justify such flagrant breach of law and violation of constitutional rights. The constitutional oath to "uphold the Constitution and the laws" should be a constant deterrent against devising procedure or ways that fly in the face of the constitutional guarantees and the mandate of the law.
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11. Even the powers of the High Court under Article 227 of the Constitution to have superintendence over all Courts and to make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts, which are also referred to in the provisions of Section 476 of the which provides for the forms, but subject to these powers, do not at all authorise the High Court to make any provision which is inconsistent with a provision of law for the time being in force, apart from the fact that any such rule or form would require the previous approval of the Governor as per the provisions of the proviso to Sub-article (3) of Article 227 of the Constitution. In fact, the constitutional provision mandates that the High Court shall not exercise its powers of superintendence including power of framing rules or regulations in derogation of any statutory provision.
12. It will also be significant to note that under Section 437(6) of the Code, it has been provided that if, in any case triable by a Magistrate, the trial of a person accused of a non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. In the same way there is another important provision contained in Sub-section (7) of Section 437, which provides that if, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. Thus, when the law has provided in these provisions for a statutory release of an accused tried by a Magistrate if the trial is not over in six months and even for release without surety in case where the trial is concluded but the judgment is not yet delivered and when the Court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of the offence, it would be a travesty of justice to insist on release of the person who has been found to be not guilty and acquitted, on his furnishing a bail bond. In Page 10 of 31 HC-NIC Page 12 of 33 Created On Sat Aug 12 19:33:26 IST 2017 12 of 33 R/SCR.A/9874/2016 CAV JUDGMENT our opinion therefore the mandatory provisions of Section 354(1)(d) must govern the field in all cases of acquittal and the accused who is acquitted is entitled to be set at liberty without any fetter of being asked to furnish a bail or bail-bond for his release and any contrary direction would be ex-facie without jurisdiction and void.
13. In the above view of the matter, we are unable to accept the contentions of the learned Additional Public Prosecutor. Neither Article 50 nor Articles 39A or 51(A)(i) and (j) referred to by the learned Additional Public Prosecutor can be pressed in service to bring about such startling results.
14, We therefore hold that no directions as were issued by a Division Bench in State of Gujarat v. H.L. Solanki reported in (1994) 35(1) Guj LR 581, could have been issued under Section 482 of the Code by the High Court to the subordinate Courts to the effect that when the acquittal orders were made, the accused should be required to furnish bail and bail bonds for securing their attendance before the appellate Court for a period of 12 months from the date of the order of acquittal or for any period whatsoever. In this view of the matter, we are constained to overrule the ratio of the decision in H.L. Solanki's case (supra). The necessary corollary of this decision would be that the conditions which have been imposed on in these three matters by the trial Courts requiring the acquitted petitioners be released only on their furnishing bail, are unconstitutional, illegal and void ab-initio and cannot therefore be sustained. No such conditions or fetters could have been imposed by the trial Court. "
19. I may straightway note that under Section 354 of the Criminal Procedure Code which provides for language and contents of judgment, it is specifically provided in the Clause
(d) of Sub-section (1) that except as otherwise expressly provided by this Court, every judgment referred to in Section 353, if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. Therefore, a specific statutory provision requires the Page 11 of 31 HC-NIC Page 13 of 33 Created On Sat Aug 12 19:33:26 IST 2017 13 of 33 R/SCR.A/9874/2016 CAV JUDGMENT Court acquitting the accused to ensure, by giving a direction, that such accused person is set at liberty. After this order of acquittal, the only provision which would fetter the liberty of such accused who is acquitted can be spelt out is from Section 390 of the Code which provides that when an appeal is presented under Section 378 i.e. an appeal from acquittal, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail.
Therefore, there is no provision as to how the acquitted accused should be treated during the period between the date of his acquittal and the presentation of the acquittal appeal which empowers the High Court to issue a warrant of his arrest and to grant bail to him. This position should be seen in contradistinction of a specific provision in Section 389(3), which empowers the trial Court to grant bail on conviction of a person where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years to enable him to obtain orders from the appellate Court under Sub- section (1) for his release on bail. Therefore, when the legislature wanted to make any provision for the interregnum period, it has done so as in Section 389(3) when an appeal against the conviction is proposed to be filed by the convict. It follows that the legislature did not intend to provide for any action being taken in respect of an accused who is acquitted during the interregnum period of the date of his acquittal and the presentation of the acquittal appeal, which alone authorises the High Court under Section 390 of the Code to issue warrant of arrest and grant bail to him.
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20. Let me look into few judgments of the different High Courts on the issue;
21. In the case of Shree Pradeep Kundalia vs. Union of India, reported in (1998) 2 CALLT 415(HC), a learned Single Judge of the Calcutta High Court, observed as under;
"2. Grant of passport undoubtedly is a valuable right of every citizen of India. Refusal to grant a passport undoubtedly is an act which has to be preceded by objective considerations and principles of fair play and natural justice. If a citizen of India is being denied the right of the grant of a passport, the cardinal principles of audi alterem partem immediately come into play with the result that a right of hearing Immediately accrues to the person who is sought to be denied the grant of a passport. Unless, therefore the person being deprived of this right is afforded a reasonable opportunity of being heard, no order refusing to grant the passport can be passed. This is the basic and cardinal principle of law.
3. In the Instant case, I find that the respondent No.2 passed the order of refusal of granting passport to the petitioner only on the ground that he had been informed by respondent Nos.3 and 4 that since certain cases were sub judice against the petitioner, the passport facilities should not be granted to him at present in fact, the communication dated 27th April 1998 makes an observation about some recommendations made by respondent Nos. 3 and 4 for denying to the petitioner the facility of the grant of a passport and apparently it is on the basis of this recommendation made by respondent Nos. 3 and 4 to respondent No.2 that the passport has been refused to the petitioner.
4. The learned Advocate for respondent Nos. 3 and 4 produced before me the original record to show that in fact some criminal cases have been pending against the petitioner. I have seen this record and find that a list of five cases, all relating to some sections of the Indian Penal Code, has been mentioned as the cases pending against the petitioner. Out of these five cases. I find that Page 13 of 31 HC-NIC Page 15 of 33 Created On Sat Aug 12 19:33:26 IST 2017 15 of 33 R/SCR.A/9874/2016 CAV JUDGMENT only one case is pending trial in the court of learned Additional Sessions Judge (wrongly mentioned in the list as learned Additional District Judge), 4th Court. Alipore. In other four cases, what appears to me is that either the proceedings against the petitioner have been dropped or that the matter is at the stage of investigation or that the State has challenged the order passed by a subordinate court to a superior Appellate/Original forum. Whether the pendency of one trial under some sections of the Indian Penal Code is a bar for a citizen of this country to obtain a passport is for the respondent No.2 to consider. Similarly, whether the mere fact that some criminal cases were pending before the police at some stage, the same having since been either dropped or being under some stage of investigation also operate as a bar for grant of passport is again a matter for the consideration of respondent No.2 alone. As far as respondent Nos.3 and 4 are concerned, they will be well within their rights to submit their report and comments, along with as much supporting reasoning and documents as possible, to argue before respondent No.2 that, based on this material and reasoning the petitioner is not entitled to the grant of a passport, but the ultimate decision has to be taken by respondent No.2 whether In fact the petitioner can be denied the right of getting a passport, specially in the light of law laid down by the Supreme Court of India in various Judgments on the subject. Including in the case of Maneka Gandhi v. Union of India & Others, . What appears to me patently is that respondent No.2 merely acted on the recommendation of respondent Nos.3 and 4 and, without perhaps his own application of mind, passed the order denying the passport facility to the petitioner. That was not permissible in law.
5. When I am saying so, I am not oblivious to the legal provision contained in section 6(2)(f) of the Passports Act, 1967 which does empower the passport authority to refuse the issuance of a passport on the ground of pendency of criminal proceeding against the applicant. Even though the expression used in sub-section (2) of section 6 of the Act is 'shall refuse'. In the context in which it is used, the refusal to issue passport on the grounds mentioned in that sub-section is not mandatory requirement of law nor is it compulsory in all cases. What is provides is that if one or more of the conditions Page 14 of 31 HC-NIC Page 16 of 33 Created On Sat Aug 12 19:33:26 IST 2017 16 of 33 R/SCR.A/9874/2016 CAV JUDGMENT specified in clauses (a) to (1) of sub-section (2) exist, the passport authority has a discretion to refuse to issue a passport. It does not mean that if such conditions exist, the passport has to be refused in all cases, without any consideration or without any application of mind. The discretion however has to be exercised fairly, properly and objectively, by a proper application of mind and on the basis of the material available to the passport authority.
6. The intention of the legislature, as reflected in the language employed in sub-section (2) of section 6 of the Act, in the context of the scheme of -Article 21 of the Constitution of India, and on the basis of the ratio laid down in the case of Maneka Gandhi v. Union of India & Others, as also in the case of Satwant Singh v. APO. New Delhi reported In clearly suggests that the grounds mentioned in clauses (a) to (1) of sub-section (2) are only by way of enabling provisions in so far as a passport authority is concerned, authorising him to exercise his discretionary power to decide whether an applicant citizen should or should not be Issued the passport, if he (the passport authority) comes accross a report or information that one of the conditions specified therein exist In so far as such an applicant is concerned. The intention of the legislature cannot be construed, by any stretch of imagination or by adopting any process of logical reasoning, to mean that if the conditions specified in clauses (a) to (i) exist, the refusal of the passport is a rule and that the passport authority has no discretion but to refuse the passport in all such cases.
7. Coming to the specific instance of the pendency, of criminal proceedings as per clause (f). It is to be noted that it is not every pendency of all types of criminal cases which would automatically disentitle an applicant to refuse a passport Each case depends on its own merits. The passport authority therefore, in the exercise of discretion. In the light of material placed before him or made available to him has to decide as to whether the pendency of any case or cases is such an event which should disentitle the applicant to the Issuance of the passport. There has to be always a link, a nexus between the criminal proceedings and the going abroad of the applicant it is not that whenever it is broght to the notice of the passport authority that a criminal case is pending against the applicant, he would automatically refuse to Page 15 of 31 HC-NIC Page 17 of 33 Created On Sat Aug 12 19:33:26 IST 2017 17 of 33 R/SCR.A/9874/2016 CAV JUDGMENT grant the passport. Such decision has to be taken by him, uninfluenced by any extraneous recommendation of any outside agency, but on objective consideration, on the basis of material available to him and by due application of mind. Applying the ratio in Maneka Gandhi and also In the case of Satwant Singh v. APO, New Delhi, the passport authority has an obligation, a constitutional and statutory duty, to also afford an effective and purposeful hearing to the applicant if it proposes to refuse the issuance of the passport. Right of hearing in a case of refusal of passport, before the order is passed is an essential concomitant of Article 21 of the Constitution of India. Actually this right has been expressly recognised In section 5 of the Act as well."
22. In the case of Daler Singh vs. Union of India, CWP No.12143 of 2015, decided on 1st October, 2015, a learned Single Judge of the Punjab & Haryana High Court, held as under;
"The right to travel abroad has been recognized as a fundamental right by the Hon'ble Supreme Court. Accordingly only such restrictions can be imposed thereon as are authorized by law.
The grounds for refusal of passports and travel documents are specified in the Passports Act, 1967. The relevant Sections 6(2) and 10 (3) thereof are reproduced below:
"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: -
(a) that the applicant is not a citizen of India.,
(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India.,
(c) that the departure of the applicant from India Page 16 of 31 HC-NIC Page 18 of 33 Created On Sat Aug 12 19:33:26 IST 2017 18 of 33 R/SCR.A/9874/2016 CAV JUDGMENT may, or is likely to, be detrimental to the security of India;
(d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;
(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;
(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;
(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;
(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.
10. Variation, impounding and revocation of passports and travel documents. -
(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,-
(a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;
(b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person Page 17 of 31 HC-NIC Page 19 of 33 Created On Sat Aug 12 19:33:26 IST 2017 19 of 33 R/SCR.A/9874/2016 CAV JUDGMENT on his behalf; [Provided that if the holder of such passport obtains another passport the passport authority shall also impound or cause to be impounded or revoke such other passport]
(c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;
(d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India.
(f) if any of the conditions of the passport or travel document has been contravened;
(g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same;
(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made."
Clearly, as per Section 6(2)(f) the issuance of a passport can be refused if proceedings in respect of a criminal offence alleged to have been committed by the applicant are pending before a criminal court in India. In Abhijit Sen's case (supra), the passport of the Page 18 of 31 HC-NIC Page 20 of 33 Created On Sat Aug 12 19:33:26 IST 2017 20 of 33 R/SCR.A/9874/2016 CAV JUDGMENT appellant/petitioner (therein) had been impounded under Section 10(2)(e) of the Passport Act, 1967 on the allegation that a criminal case is pending against him before a Criminal Court in India, at the instance of his wife. The Division Bench of Calcutta High Court after taking into consideration various decisions of the Hon'ble Supreme Court and the High Courts on the issue, held as under:-
"16. The above observations of the Apex Court makes it clear that submission of the charge sheet is a matter culminating after the investigation by the Police is over and over which the Court has no control and therefore, the presentation of a charge sheet cannot be said to initiate the criminal proceedings until cognizance is taken by the Magistrate to place the accused on trial."
In Venkatesh Kandasamy Vs. Government of India, Ministry of External Affairs, Chennai, 2015 AIR (Madras) 3, the Court was concerned with the question as to when can the proceedings be said to be pending before the Criminal Court.
"19. Having taken note of the scheme of the Passports Act, if we now go back to Section 6(2)(f) of the Act, it is seen that after invoking the said provision the first requisite is that proceedings in respect of an offence should be pending before a Criminal Court in India. The question as to what tantamount to proceedings pending before the Criminal Court, had come up for consideration earlier.
20. In Suresh Nanda v. C.B.I. [Appeal (Crl.)No.179 of 2008 dated 24.1.2008 by the Supreme Court], the passport of a non resident Indian settled in the United Kingdom, was seized by the Police, when they conducted a search. A first information report was registered on the basis of a sting operation carried out by a news portal. The passport seized during the search was retained by the Central Bureau of Investigation. The Special Judge of the CBI Court directed the release of the passport. On a criminal revision filed by the Central Bureau of Investigation, the High Court reversed the order of the Special Court. Therefore, the individual filed a special leave Page 19 of 31 HC-NIC Page 21 of 33 Created On Sat Aug 12 19:33:26 IST 2017 21 of 33 R/SCR.A/9874/2016 CAV JUDGMENT petition before the Supreme Court.
21. After taking note of the provisions of Section 10(3)(e) of the Passports Act, 1967 and after taking note of the decisions of two Constitution Benches, one in Satwant Singh Sawhney v. D.Ramarathnam, Assistant Passport Officer [1967 (3) SCR 525] and Menaka Gandhi v. Union of India and another [1978 (1) SCC 248], the Supreme Court held that the Passports Act, 1967 being a Special Act, the provisions therein would prevail over Section 104 of the Criminal Procedure Code, which confers general power upon the Court to impound any document. The Court also pointed out the distinction between the mere seizure of a passport and the impounding of the same. A seizure is made at a particular moment, when somebody takes into possession of some property. However, if the seized property is retained for some period of time, the retention amounts to impounding. Therefore, the Supreme Court pointed out that while the Police may have the power to seize a passport under Section 102 of the Code, if it is permissible within the authority given therein, it does not have the power to retain or impound the same. The Court also indicated that the moment the Police seizes a passport under Section 102 of the Criminal Procedure Code, they must send it along with a letter to the Passport Authority clearly stating that the seized passport deserves to be impounded for want of reasons mentioned in Section 10(3). It is thereafter for the Passport Authority to decide what to do. Even while taking a decision, the Passport Authority is to give an opportunity of hearing. What is important in the aforesaid decision is that in paragraph 15, the Court indicated that even the Court cannot impound a passport despite the enabling provision in Section 104 of the Code.
22. In Abhijit Sen v. Superintendent [2004 Crl.L.J. 1281], a Division Bench of the Calcutta High Court was concerned with a case where the Passport Authority impounded the passport under Section 10(2)(e), on the ground that a criminal case was pending against the passport holder. The Calcutta High Court held that there are two processes for initiation of a proceeding before a Criminal Court. While the first part is the investigation by Page 20 of 31 HC-NIC Page 22 of 33 Created On Sat Aug 12 19:33:26 IST 2017 22 of 33 R/SCR.A/9874/2016 CAV JUDGMENT the Police, the other part is the direction by the Court. Therefore, after pointing out the condition prescribed in Section 190 of the Criminal Procedure Code for initiation of proceedings, the Division Bench of the Calcutta High Court opined that the proceedings before a Magistrate is initiated when cognizance is taken. The Court held that no proceeding can be said to have been initiated under Clause (a) of Section 190 within the meaning of Section 10(2)(3) of the Passports Act.
23. In so far as the case on hand is concerned, all the criminal complaints as against the petitioner are only at the stage of investigation. It is not a case of the Respondent that final reports have been filed in the criminal Courts in any of the criminal complaints, so as to make the case come within the four corners of Section 6(2)(f). Therefore, the impugned order is vitiated by non- application of mind and hence it is liable to be set aside." Thus, it has been held that proceedings can be said to be pending before a criminal court only when a cognizance has been taken by the Court.
In Tarsem Singh's case (supra), this Court dealt with a matter of re-issue of passport to the petitioner, who was convicted and sentenced to undergo rigorous imprisonment for 5 years by the Trial Court. Appeal against conviction and sentence filed by him was pending, wherein, his sentence was suspended. The objection of the respondent was that the petitioner had not disclosed about his conviction in a criminal case at the time of police verification. Later on, the petitioner filed affidavit mentioning these facts. In these circumstances, this Court directed the Passport Officer to issue the passport to the petitioner, subject to the conditions that the petitioner shall take necessary permission by filing application before the Court to go abroad.
In Surinder Pal Singh's case (supra), a case under Sections 427/506/148/149 IPC and Section 25 of the Arms Act was registered against the petitioner. Report under Section 173 CrPC had been filed and even the charge was also framed against him and the case was pending for prosecution evidence. This Court disposed of the petition granting liberty to the petitioner to apply to the concerned criminal court and seek its permission to apply for re-issuance of passport.
Page 21 of 31HC-NIC Page 23 of 33 Created On Sat Aug 12 19:33:26 IST 2017 23 of 33 R/SCR.A/9874/2016 CAV JUDGMENT Coming to the facts of the case in hand, a criminal case arising out of the strained matrimonial ties has been registered against the petitioner at the instance of his alleged wife. As per the documents available on record and the version of the parties, the Criminal Court has not taken cognizance of it and charge against the petitioner has not been framed."
23. In the case of Meer Saibo Samsudeen vs. Intelligence Oficer Narcotic Control Bureau South Zonal Unit, reported in 212 LS (Kar) 463, a learned Single Judge of the Karnataka High Court held as under;
"( 1) THE order dated 22.2.2012 passed by the learned Spl. Judge rejecting the application filed by the appellant u/s 452 of the Cr.P.C is the subject matter of this appeal. Submission of the learned counsel Sri, Hashmath Pasha, for the appellant is that, the appellant was acquitted by the trial court in Spl.C.C. No. 234/04 and thereafter an application was filed by the appellant seeking return of the passport (Ex.P25) and other documents and also currency notes. The said application was rejected by the learned Special Judge. It Is therefore submitted that, when the appellant has been acquitted by the Sessions Court after a full fledged trial, merely because the complainant NCB has also preferred an appeal before this court challenging the acquittal order, that is not a ground to refuse the prayer of the appellant for release of the passport. In this connection learned counsel placed for my perusal the order passed in similar circumstances by this court in Crl.A. No. 370/11 on 13,6.2011 and on the very same reasons, learned counsel sought for the appeal being allowed.
( 2. ) LEARNED counsel Sri, K. Mohan for the respondent - Intelligence Officer, NCB submitted that the respondent has also filed an appeal challenging the acquittal of the appellant herein and therefore in the event of the respondent's appeal being allowed, it will be difficult to get the appellant as he is a foreign National.
3). Having thus heard both sides, in view of the Page 22 of 31 HC-NIC Page 24 of 33 Created On Sat Aug 12 19:33:26 IST 2017
24 of 33 R/SCR.A/9874/2016 CAV JUDGMENT acquittal of the appellant by the trial court, merely because appeal is preferred by the respondent, that is not a ground to reject the prayer of the appellant for release of the passport, This court in similar matter referred to by the learned counsel for the appellant in Crl.A. No. 370/11 has directed release of the passport by imposing conditions and similar order can therefore be passed in this case also."
24. In the case of Riazlee vs. The Passport Officer, Madurai Passport Office, Madurai, Writ Petition No.6623 of 2010, decided on 27.05.2010, a learned Single Judge of the Madras High Court, held as under:
"5. The legal issue as to whether the respondent can refuse to renew a passport on the sole ground that a criminal case is pending is no longer res integra. The Hon'ble Supreme Court in the case of Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597, considered the constitutional validity of Section 10(3)(c) of the Passport Act was considered. The Hon'ble Supreme Court upheld the validity of Section 10(3)(c) of the Act and it was held that the procedure contemplated by Article 21 of the Constitution of India must answer the test of reasonableness in order to be in conformity with the Article 14 of the Constitution of India and such procedure must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise it should be no procedure at all and the requirement of Article 21 of the Constitution would not be satisfied. Thereafter, the Central Government in exercise of the powers conferred under Section 22(a) of the Act issued a notification dated 16.08.1979 exempting citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before any 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 Act, subject to certain conditions contained in the notification.
6. Subsequently another notification dated 25.08.1993 came up to be issued substituting the earlier notification and the effect of such notification was considered by the Page 23 of 31 HC-NIC Page 25 of 33 Created On Sat Aug 12 19:33:26 IST 2017
25 of 33 R/SCR.A/9874/2016 CAV JUDGMENT Bombay High Court in Deepak Dwarkasingh Chhabria Vs. Union of India reported in AIR 1997 BOMBAY 181, and it was held as follows: "9. By the notification dated 25th August, 1993, the earlier notification was substituted granting exemption to the citizens 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 order from the Court concerned permitted 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 of 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, 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 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.
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10. In view of the aforesaid notification by the Central Government, it is clear that the citizens against whom criminal cases are pending are made exempt from the operation of Section 6(2)(f) provided they produce orders from the concerned Court permitting them to travel abroad subject to the terms and conditions mentioned in the notifications. In other words, an application of passport is not liable to be refused on the ground of pendency of criminal case if the applicant obtains permission from the concerned Criminal Court for travelling outside India. The passport authority, therefore cannot reject the application for passport mechanically on the ground of pendency of criminal case against the application. It will be the duty of the passport authority to bring the relevant notification to apply to the concerned Criminal Court for permission to travel abroad. If the applicant obtains such permission from the Criminal Court where his case is pending, the passport authority will be duty bound to issue the passport in terms of the order of the Criminal Court subject to the conditions of the notification."
7. The judgment of the Bombay High Court was followed by the Gujarat High Court in Dhiren Baxi Vs. Regional Passport Officer, Ahmedabad reported in AIR 2003 GUJARAT 108 and the Hon'ble Gujarat High Court issued the following directions:
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, permits the petitioner to go abroad, the passport authority may pass appropriate order in the Page 25 of 31 HC-NIC Page 27 of 33 Created On Sat Aug 12 19:33:26 IST 2017 27 of 33 R/SCR.A/9874/2016 CAV JUDGMENT 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 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.
8. Subsequently, the Bombay High Court in Shyam Dwarkadas Chabria Vs. Regional Transport Officer and another reported in 2000 CRI. L. J. 2942 also dealt with the same issue and held as follows:
"11. The impugned order dated 5th January, 1993 passed by the Regional Passport Officer, Bombay is quashed and set aside. The petitioner will be at liberty to make an application to the Chief Judicial Magistrate, Pune for permission to travel abroad. If such an application is made, the learned Magistrate shall decide that application as expeditiously as possible and in any event within four weeks from the date of receipt such application. In case the learned Magistrate permits the Page 26 of 31 HC-NIC Page 28 of 33 Created On Sat Aug 12 19:33:26 IST 2017 28 of 33 R/SCR.A/9874/2016 CAV JUDGMENT petitioner to travel abroad, the passport authority shall forthwith issue the passport in terms of the order of the Magistrate subject to the terms and conditions mentioned in the notification dated 25th August, 1993."
9. Therefore, in view of the notification issued by the Central Government and as well as the law laid down in the above referred decisions, the renewal of the petitioner's passport cannot be refused merely on the ground of pendency of the criminal case. In fact, the petitioner ought to have been directed to approach the Court concerned before which the criminal case is pending and move an appropriate application seeking permission of the Court for necessary directions. Hence, the stand taken by the respondent by stating that mere pendency of the criminal case would operate as a bar for seeking renewal of the passport cannot be sustained. "
25. In the case of Nilesh Heda vs. Union of India, Civil Writ Petition No.14683 of 2015, decided on 14th October, 2015, a learned Single Judge of the Rajasthan High Court considered the issue as regards pendency of an acquittal appeal in the High Court vis a vis section 6(2)(f) of the Passport Act, 1967. I may quote the observations as under;
"8. The right to travel abroad for which a passport is a sine qua non has been recognised in Maneka Gandhi's case as a fundamental right. Restraints on fundamental rights are to be strictly construed and so should Section 6(2)(f) of the Act of 1967 be. The words in the said section are that for refusal of a passport or renewal, a case against the applicant should be pending in a criminal court. Section 6(2)(f) of the Act of 1967 requires a wholistic construction, contextual with other clauses of Section 6(2) of the Act of 1967. To read into the clause (f) of Section 6(2) of the Act of 1967, a disability for an applicant to get a passport in the first instance or a renewal despite an acquittal would be quite absurd as Section 6(2)(e) of the Act of 1967 effectively allows for grant of passport in spite of a conviction even for an offence of moral turpitude where the sentence is less than two years. To avoid absurdity in the consequence flowing from a literal reading of Section 6(2)(f) of the Act Page 27 of 31 HC-NIC Page 29 of 33 Created On Sat Aug 12 19:33:26 IST 2017 29 of 33 R/SCR.A/9874/2016 CAV JUDGMENT of 1967 where on the one hand despite acquittal, pending appeal, the Passport Officer could refuse a passport for reason of the pending appeal and, on the other hand, in spite of conviction and sentence albeit of less than two years grant a passport under Section 6(2)
(e) of the Act of 1967, the inevitable conclusion has to be that the words "proceedings in respect of an offence alleged to have been committed by an applicant pending before a criminal court in India" should be construed as referring only to matters before the trial court and not before the appellate courts in appeals against acquittal.
This construction harmonizes Section 6(2)(e) and 6(2)(f) of the Act of 1967 and eschews an otherwise obvious inexplicable contradiction in law.
9. Aside of the above, in my considered view, even otherwise, an appeal from a judgment of acquittal before the High Court cannot be said to be a proceeding within the meaning of "a proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India" under Section 6(2)(f) of the Act of 1967.
10. Section 6(2)(f) of the Act of 1967 reads as under:-
"That proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India."
11. The words of import which require consideration are "pending before a criminal court in India". The question which arises is whether the High Court to which an appeal is filed against a judgment of acquittal is a "Criminal Court" for the purpose of the Act of 1967. The Act does not define the term "criminal court". The Code of Criminal Procedure, 1973 (hereinafter 'the Act of 1973') however defines a High Court in Section 2(e) as under:-
"(e) High Court" means-
(i) in relation to any State, the High Court for that State;
(ii) in relation to a Union Territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court;Page 28 of 31
HC-NIC Page 30 of 33 Created On Sat Aug 12 19:33:26 IST 2017 30 of 33 R/SCR.A/9874/2016 CAV JUDGMENT
(iii) in relation to any other Union Territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India."
12. Section 6 of the Act of 1973 describes the classes of "Criminal Courts" and provides that there will be in every state the following classes of criminal courts:-
"(i) Court of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates."
13. The Air Force Act, 1950 defines a "criminal court" to mean a court of ordinary criminal justice in any part of India. So does the Assam Rifles Act, 2006 which also defines a "criminal court" to mean a court of ordinary criminal justice in any part of India. Ditto the Coast Guard Act, 1978. The Indo Tibetan Border Police Force Act, 1992 defines a criminal court to mean a court of ordinary criminal justice in any part of India including a court of a Special Judge appointed under Criminal Law Amendment Act, 1952. As does the National Security Guard Act, 1986. The Shastra Seema Bal Act, 2007 similarly defines a "criminal court" to mean a court of ordinary criminal justice in any part of India constituted under the Code of Criminal Procedure. The unlawful Activities (Prevention) Act, 1967 defines "a court" to mean a criminal court having jurisdiction under the Act to try offences under the Act of 1967 including the special court constituted under Section 11 or 21 of the National Investigating Agency Act, 1908. The Unlawful Activities (Prevention) Amendment Ordinance, 2004 defines a court to mean a criminal court having jurisdiction under the Act to try offences.
14. The gamut of definitions of "criminal courts"
through various statutes indicates that they are courts of ordinary criminal justice i.e. Trial court contra distinguished to appellate court. They are courts constituted under the Code of Criminal Procedure, 1973 and other enactments to try offences. The High Court Page 29 of 31 HC-NIC Page 31 of 33 Created On Sat Aug 12 19:33:26 IST 2017 31 of 33 R/SCR.A/9874/2016 CAV JUDGMENT exercising criminal appellate jurisdiction against a judgment of acquittal in the circumstances, to my mind, is not a court of ordinary criminal jurisdiction and for the limited purpose of Section 6(2)(f) of the Act of 1967, not be a criminal court. Consequently an appeal against acquittal pending in High Court in exercise of its criminal appellate jurisdiction would not entitle the Passport Officer to refuse an application for issue of passport or its renewal. This conclusion is based on the interpretation of the words "criminal court" limited to the manner they are referred to in Section 6(2)(f) of the Act of 1967, based on the definitions of the said words in statutes para materia, the need for a restrictive interpretation of laws impugning on fundamental rights of citizens, the need to harmonize an otherwise palpable interpretative absurdity arising from a literal and expansive reading of Section 6(2)(f) vis--vis Section 6(2)(e) where a convict suffering upto two years of sentence can not be refused a passport yet despite acquitted in a criminal case for reason of pendency of an appeal thereagainst, the issue of passport can be refused."
26. All the above referred decisions are on Article 21 of the Constitution of India and the right of the accused to have a passport during the pendency of the criminal proceedings.
27. I am of the view that mere pendency of the acquittal appeal is no reason for the Trial Court to withhold the passports of the three applicants herein. The acquittal appeal may take a long time before it is disposed of. The delay may cause serious prejudice to the applicants herein. In such circumstances, the impugned order is quashed.
28. The Trial Court is directed to handover the passports to the applicants at the earliest. The applicant No.1, while taking the possession of her passport along with the two passports of Page 30 of 31 HC-NIC Page 32 of 33 Created On Sat Aug 12 19:33:26 IST 2017 32 of 33 R/SCR.A/9874/2016 CAV JUDGMENT her two minor children, shall execute a personal bond of Rs. 1 Lac and shall also furnish the correct address of her place of residence at South Africa after getting the same attested by the Embassy of the South Africa and also attested by the Indian Embassy at South Africa. The applicant No.1 shall also give an undertaking that she will appear before the Sessions Court without fail, in the event she is called upon to do so during the pendency of the acquittal appeal.
29. With the above, this application is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 31 of 31 HC-NIC Page 33 of 33 Created On Sat Aug 12 19:33:26 IST 2017 33 of 33