Rajasthan High Court - Jodhpur
Balkaran Singh vs State Of Rajasthan on 21 November, 2022
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 7826/2022
Balkaran Singh S/o Sheetal Singh, Aged About 52 Years, W.no. 2
Near Gurudwarasahib, Jandwala Sikhan, 15 Amp (Jatwala
Sikhan), Sangaria Dist. Hanumangarh.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. D.K. Godara
For Respondent(s) : Mr. S.K. Bhati, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order 21/11/2022 By way of filing the present petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has challenged the order dated 13.07.2022 passed by the learned Additional Chief Judicial Magistrate, Sangariya, Hanumangarh (hereinafter referred to as "the trial Court"), whereby petitioner's application seeking Court's permission for issuance of passport has been rejected.
The facts necessary for consideration in the present petition are that the petitioner was facing trial for the offences under sections 472, 420, 120B, 465, 467, 468 and 471 of the Indian Penal Code in the Criminal Case No.89/2019. During pendency of trial, the petitioner moved an application before the learned trial Court seeking necessary directions to the passport authority to issue him a passport. The said application filed by the petitioner was rejected by the learned trial Court vide order dated (Downloaded on 24/11/2022 at 09:59:40 PM) (2 of 7) [CRLMP-7826/2022] 13.07.2022, observing inter-alia that no urgency was shown by the petitioner before the Court below that he is in harsh need to visit Canada and Australia and that the petitioner is not having a valid passport.
Mr. D.K. Godara, learned counsel representing the petitioner argued that the petitioner is a senior citizen aged 72 years and he wishes to visit abroad to meet his children who are living in Canada and Australia but due to pendency of the aforesaid case, he is facing difficulty in issuance of passport. It is further submitted that pendency of a criminal case would not be an impediment for the Court in issuance of passport. Learned counsel further submits that getting a passport under the Passports Act, 1967 is a statutory right of a citizen and the same cannot be denied for untenable grounds. He emphasised that what is required by the law is that an accused has to obtain permission from the Court before leaving the country and that he would be required to obtain visa.
Mr. S.K. Bhati, learned Public Prosecutor appearing for the respondent - State submits that the learned trial Court has rightly rejected petitioner's application as the same was without requisite particulars. He invites the Court's attention towards the notification No.GSR 570(E) dated 28.06.1993 and argues that without the leave of the Court, a person cannot leave the country.
Heard learned counsel for the parties. Perused the material available on record.
It is significant to note here that the Passports Act, 1967 does not confer absolute power upon a citizen to obtain passport. Section 6(1) & (2) of the Act prescribe certain conditions/eventualities when the passport authority is required to (Downloaded on 24/11/2022 at 09:59:40 PM) (3 of 7) [CRLMP-7826/2022] turn down request to make an endorsement or issue passport which includes a condition when an applicant is an accused in a criminal case. Relevant extract of section 6(2) is reproduced hereinbelow:-
"(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 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 (Downloaded on 24/11/2022 at 09:59:40 PM) (4 of 7) [CRLMP-7826/2022] 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."
To diminish the rigour of sub-section (2)(f) of section 6, the Central Government has issued a notification dated 28.06.1993 which enables the passport authority to issue passport even in the case of a person covered by clause (f) of sub-section (2) of section 6 of the Act. The notification dated 28.06.1993 is reproduced as under in its entirety:-
"GSR 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. GSR 298(E) dated the 14" April 1976, the Central Government, being of the opinion that it is necessary ni 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 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 (Downloaded on 24/11/2022 at 09:59:40 PM) (5 of 7) [CRLMP-7826/2022] 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 validity of the passport, the passport shall be issued for one year;
(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 afresh court order specifying a further period of validity of the passport or specifying a period for travel abroad;
(d) the said citizen shall given 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."
The aforementioned notification provides that upon production of an order from the Court, an application for grant of passport shall be considered. In case the order of the Court does not disclose the period for which the passport is to be issued, then, (Downloaded on 24/11/2022 at 09:59:40 PM) (6 of 7) [CRLMP-7826/2022] the passport authority will issue the passport for a period of one year only or as the case may be.
An accused desirous of seeking permission or order of getting exemption from rigour of clause (f) of section 6(2) of the Act in terms of the notification dated 28.06.1993 may or may not specify the period of stay and place of visit, but in an appropriate case, Court can still consider his request and pass an order in this regard. Court's duty in dealing with such 'application' is to see the nature of offence and the necessity of travel. An order in terms of the notification dated 28.06.1993 cannot be passed as a matter of course/or in routine.
Notification dated 28.06.1993 requires the Court to grant permission to travel abroad and on the basis of such order, the passport is required to be issued. If such order does not specify the period of travel, passport can be issued for 1 year. Petitioner has stated in his application that his children reside in Australia and Canad and he is supposed to visit them for social gatherings and family get togethers. True it is that he has not given specific date or period of travel but the trial Court should have passed order of issuing passport. Passing of an order in terms of the Notification dated 28.06.1993 is slightly different than grant of permission to travel abroad.
In considered opinion of this Court the trial Court has therefore, erred in rejecting petitioner's application for issuing passport, which was in essence an application for order in terms of notification dated 28.06.1993. The order of the trial Court is thus, liable to be set aside and thus this Court persuaded to quash the same.
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(7 of 7) [CRLMP-7826/2022] It is noteworthy that the petitioner is of 72 years old man and the pendency of a criminal case is not an impediment for the court for issuance of passport in these circumstances, the passport authority should not refuse to issue passport to the petitioner in the face of sub-section (e) of section 6 of the Passports Act. Clause (e) provides for refusal of passport where a person has been sentenced with imprisonment for a period not below two years within the five years preceding his application for passport under section 5 of the Passports Act. The petitioner has not been sentenced, hence he has not acquired any disqualification.
In light of the discussion made hereinabove, the instant petition is disposed of with a liberty to the petitioner to make an application afresh before the competent authority, following the procedure prescribed under section 5 of the Passports Act. If the petitioner prefers such an application, the passport authority shall consider the same in light of the relevant provisions of Passports Act as well as of the instant order without being influenced by the order passed by the trial Court on 13.07.2022.
The present petition is disposed of accordingly. The stay application also stands disposed of.
(FARJAND ALI),J 92-Mamta/-
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