Calcutta High Court (Appellete Side)
Sujoy Mitra vs The Regional Passport Officer on 17 September, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
17.09.2019
01
RP Ct.10
WP 2478 (W) of 2019
Sujoy Mitra vs. The Regional Passport Officer, Calcutta & Ors.
Mr. Imtiaz Ahmed, Adv.
Mr. Saidullah, Adv.
Mr. Partha Pratim Dutt, Adv.
.... For the Petitioner
Mr. Ravi Prosad Mookerjee, Adv.
.... For UOI
Even though this matter appears under the heading "To Be
Mentioned"; by consent of the parties it is taken up for final disposal.
This petition under Article 226 of the Constitution of India seeks,
inter alia, the following relief:-
"A writ of Mandamus or a writ in the nature of mandamus
directing the respondent authority to renew/re-issue passport
to the petitioner to procure so that he can get the job at Bangkok and earn his livelihood and thereby protect his right to life and liberty as it has been granted under the Constitution of India."
From the record it appears that the writ petitioner was convicted of an offence including that of rape by and under the judgment of conviction dated January 19, 2018 and the sentence dated January 20, 2018 passed by the learned Additional Sessions Judge, Alipore, South 24 Parganas in 2 Sessions Case No.1(10)2013 being Sessions Trial No.1(8) 2014. It is an admitted position that the appellant/petitioner who is a convict carried the judgment of conviction and the order of sentence in an appeal before the Hon'ble Appellate Court having criminal jurisdiction. The said appeal was registered as CRA 110 of 2018 and was admitted on June 11, 2018 and an application for bail was made in connection with the said appeal. It is also an admitted position that the petitioner was enlarged on bail as appears from Annexure P-8 to the writ petition. There was no suspension of the sentence but bail was granted by a coordinate bench sitting in criminal jurisdiction by an order dated July 30, 2018 on the ground that the petitioner had an arguable case.
Now Mr. Ahmed, learned Advocate for the petitioner has made out a case that his client has got a job offer in Bangkok and unless he is granted a passport and/or renewal of his existing passport he will not be able to go and join the employment abroad.
Mr. Mookerjee, learned Advocate for the respondent authorities opposed the prayer on the ground mainly that the petitioner is a convict and he has been enlarged on bail but not acquitted as yet and allowing him to go abroad will be risky. That apart Mr. Mookerjee has wondered whether I should entertain this petition under Article 226 of the Constitution of India since a criminal appeal is pending before a 3 coordinate bench of this Hon'ble Court. In other words, an effective statutory alternative remedy not only exists but the main proceeding leading to the said remedy has already been adopted by the petitioner.
Mr. Ahmed in reply submits that there is a judgment of the Hon'ble High Court of Judicature at Bombay passed by a learned Single Judge of that Court whereby His Lordship in a similar circumstance directed renewal of the passport of the appellant in a criminal case therein and he seeks same benefit since according to Mr. Ahmed the circumstances are similar.
I have gone through the judgment of the said coordinate bench in the High Court of Judicature at Bombay in the case of Sunil Pravinchandra Shah vs.The State of Maharashtra & Anr. I find that Mr. Ahmed is perfectly correct that the Hon'ble Single Judge of the High Court of Judicature of Bombay was pleased to grant such prayer in a Criminal Application No.454 of 2016 filed in Criminal Appeal No.1157 of 2008. Therefore while supporting the prayer of Mr. Ahmed it militates against the prayer being granted by the writ Court. The judgment cited by him in itself is an authority for the proposition that in such case the existing criminal appeal is the forum before which his client ought to have moved for the efficacious and statutory alternative remedy. 4
I do disapprove of the respondents' deliberately non-filing of the affidavit-in-opposition after an order of a coordinate bench and also my order. It may be that they have nothing on merits to oppose to Mr. Ahmed's prayer; but so far as the point of entertaining this writ petition is concerned the respondents have argued that they do not require affidavit for that. Accordingly I must hold that on the basis of the judgment cited by the petitioner and on the settled principle of law this writ petition for the relief prayed for ought not to be entertained under Article 226 of the Constitution of India. I make it clear that nothing contained in this order shall prevent the petitioner from making an appropriate application before the Court having criminal jurisdiction.
The writ petition is, thus, disposed of with the above observation. There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.
(PROTIK PRAKASH BANERJEE, J.) 5