Karnataka High Court
Sandeep B Y vs The Regional Passport Officer on 12 January, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 26141 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 26141 OF 2022 (GM-PASS)
BETWEEN:
1. SANDEEP B.Y.,
S/O LATE B.JAYASIMHA
AGED ABOUT 31 YEARS
R/AT NO.7, SRI NILAYAM,
DWARAKA NAGAR, 1ST STAGE,
BEHIND MANTRI ALPYNE,
BSK 5TH STAGE,
RAJARAJESHWARINAGAR
BENGALURU-560098
...PETITIONER
(BY SRI. VENKATARAMANA K.S., ADVOCATE)
AND:
1. THE REGIONAL PASSPORT OFFICER,
REGIONAL PASSPORT OFFICE,
BENGALURU,
Digitally signed 8TH BLOCK, 8TH FEET ROAD,
by PADMAVATHI KORAMANGALA, BENGALURU-560095
BK
Location: HIGH
COURT OF 2. STATION HOUSE OFFICER
KARNATAKA RAJARAJESHWARINAGAR POLICE STATION
BENGALURU-560098
...RESPONDENTS
(BY SRI. SHANTHI BHUSHAN H., DSGI FOR R1;
SMT. SHWETHA KRISHNAPPA, AGA FOR R2)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT
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WP No. 26141 of 2022
THE R-1 TO RENEW THE PETITIONER'S PASSPORT BEARING
NO.Z2466351 VIDE ANNX-C BY CONSIDERING THE
APPLICATION FOR RENEWAL FILED BY THE PETITIONER
DATED. 22.12.2022 VIDE ANNEXURE-E AND ETC.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking a direction by issuance of a writ in the nature of mandamus directing the 1st respondent / Regional Passport Officer to renew/re-issue the passport possessed by him.
2. Heard Sri K.S.Venkataramana, learned counsel appearing for the petitioner, Sri H.Shanthi Bhushan, learned Deputy Solicitor General of India appearing for the 1st respondent and Smt. Shwetha Krishnappa, learned Additional Government Advocate appearing for respondent No.2.
3. Brief facts that lead the petitioner to this Court in the subject petition as borne out from the pleadings are as follows:-
The petitioner, who claims to be a businessman and having his business operations beyond the shores of this -3- WP No. 26141 of 2022 nation, possessed a passport issued to him on 03-01-2013 for a period of 10 years, which was valid upto 02-01-2023. Between the dates of issuance and its expiry as indicated hereinabove, the Chikkaballapura Police registered a crime against the petitioner, investigated into the crime and filed a charge sheet against him in C.C.No.58 of 2020. Aggrieved by registration of the crime and filing of charge sheet, the petitioner has filed Criminal Petition No.7627 of 2021 before this Court. A co-
ordinate Bench of this Court in terms of its order dated 29.09.2021, has stayed further proceedings in C.C.No.58 of 2020.
4. The petitioner whose passport was to expire on 02.01.2023, requested for its renewal by submitting an application on 22-12-2022, before its expiry. The application of the petitioner was sent for verification to the jurisdictional police station by the 1st respondent. The petitioner addresses a communication to the Station House Officer of the Police Station bringing to his notice that the criminal case registered against him has been stayed by this Court in Criminal Petition No.7627 of 2021 and requested the Police to issue No Objection -4- WP No. 26141 of 2022 for re-issuance of passport. This request having not taken any further, the petitioner has knocked the doors of this Court by filing the subject petition on 28.12.2022 seeking the aforesaid direction to the 1st respondent.
5. The learned counsel appearing for the petitioner would seek to contend that the 1st respondent/Regional Passport Officer cannot deny re-issuance of passport merely because the Police have registered a crime and the proceedings are pending in C.C.No.58 of 2020 before the concerned Court. He would contend that the fundamental right of the petitioner to travel cannot be curtailed as this Court has stayed further proceedings in C.C.No.58 of 2020.
6. On the other hand, the learned Deputy Solicitor General of India would seek to refute the submissions by taking this Court to the statement of objections so filed by him to contend that the Passport Act, 1967 ('the Act' for short), would deny renewal or re-issuance of passport to an applicant against whom criminal case is pending. It is an admitted fact in the case at hand that the Police have also filed a charge sheet -5- WP No. 26141 of 2022 against the petitioner, which is pending in C.C.No.58 of 2020.
Merely because there is an interim order of stay, it would not mean that the petitioner has been acquitted of the offence.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are not in dispute and the issue lies in a narrow compass. The passport issued to the petitioner was in subsistence upto 02-01-2023. The petitioner submits an application seeking its renewal/re-issuance and the application of the petitioner was sent for verification. The submission of the Deputy Solicitor General of India is that, the petitioner is ineligible for re-issuance of passport in terms of Section 6(2)(f) of the Act.
9. Section 6 of the Act reads as follows:
"6. Refusal of passports, travel documents, etc.--(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of -6- WP No. 26141 of 2022 the following grounds, and on no other ground, namely:--
(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;
(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;
(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;
(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.
(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;-7- WP No. 26141 of 2022
(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."
(Emphasis supplied) Section 6 deals with refusal of passport and travel documents etc. Section 6(2)(f) mandates that if proceedings are pending in respect of an offence alleged to have been committed by the applicant before a criminal Court in India, the passport authority would have the right to refuse issuance of passport or travel documents for visiting any foreign country. Therefore, -8- WP No. 26141 of 2022 issuance of passport or re-issuance of passport is subject to Section 6(2)(f) of the Act. It is an admitted fact that a charge sheet is filed by the police against the petitioner in C.C.No.58/2020 and is pending before the concerned Court.
10. For the aforesaid reasons, mandamus that is sought at the hands of this Court cannot be granted to the petitioner.
The petition lacking in merit stands dismissed.
The dismissal of the petition would, however not come in the way of the petitioner moving the appropriate Court for redressal of his grievance.
Sd/-
JUDGE nvj List No.: 1 Sl No.: 45 -9- WP No. 26141 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU [SANDEEP B Y VS. THE REGIONAL PASSPORT OFFICER AND ANOTHER] MNPJ 22.08.2023 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON 'BEING SPOKEN TO' This petition was heard and disposed by an order dated 12.01.2023. Since there was an another order passed, which was directing the petitioner who is similarly placed, to approach the concerned Court and seek permission for renewal of passport or travel as the case may be, this petition is moved for 'Being Spoken To', on consent. The order that is passed in W.P.No.20850/2022, disposed on 16.11.2022, reads as follows:
"The petitioner is before this Court calling in question communication dated 27-09-2022 issued by the 1st respondent/ Regional Passport Officer, Bangalore and has sought a consequential direction by issuance of a writ in the nature of mandamus directing the 1st respondent to renew/re-issue the passport to the petitioner.
2. Heard Sri B.K. Mohan, learned counsel appearing for the petitioner, Sri H.Shanthi Bhushan, learned Deputy Solicitor General of India appearing for respondents 1 and 2 and Sri M.Vinod Kumar, learned Additional Government Advocate for respondent No.3.
3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-
The petitioner is in possession of an Indian
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Passport bearing No.V2615889. The petitioner becomes involved in a criminal case in Crime No.16 of 2021 registered for offences punishable under Sections 403, 406, 417, 120B, 380 r/w 34 of the IPC. In the said case, the Police after investigation have filed a 'B' report and the 'B' report is pending consideration at the hands of the learned Magistrate. The 1st respondent in terms of his communication dated 27-09-2022 directs surrender of passport within 21 days from receipt of the said communication. It is this communication that drives the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would submit that the very act of the 1st respondent directing the petitioner to surrender the passport is contrary to law. The direction to surrender is on the basis of pendency of FIR in Crime No.16 of 2021 and police after investigation have filed a 'B' report. Surrendering of passport can be made only when the petitioner is held guilty for furnishing any false information in terms of Section 12(1)(b) of the Passports Act,1967 ('the Act' for short) which is not applicable to the facts of the case at hand. He would seek quashing of the said communication.
5. On the other hand, the Deputy Solicitor General of India representing respondents 1 and 2 would contend that the remedy for the petitioner is before the concerned Court before whom the crime is pending adjudication. He would submit that admittedly, the passport of the petitioner has expired and on its expiry it has to be re-issued. For re-issue in terms of Section 6 of the Act he should be free of crime. Filing of 'B' report does not make the petitioner free of crime as 'B' report could be accepted or rejected by the learned Magistrate. He would seek to place reliance upon
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several office memoranda issued by the 1st respondent/Union of India from time to time concerning issuance of passport to its citizens. He would further contend that the petitioner be directed to approach the concerned Court seeking travel permission, in case itis warranted.
6. In reply, the learned counsel for the petitioner would seek to place reliance on the judgment rendered by a co-ordinate Bench wherein a direction was issued for issuance of passport despite pendency of crime in Writ Petition No.19203 of 2021 [Smt. Kasturi Rajupeta v. Union of India and others - decided on 17th March 2022] to which the learned Deputy Solicitor General joining issue would submit that the said judgment rendered by the co-ordinate Bench is stayed by the Division Bench in Writ Appeal No.392 of 2022 and the matter is pending consideration. He would submit that the petitioner has to approach the concerned Court for any relief.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the materialon record.
8. The afore-narrated facts are not in dispute. The petitioner was in possession of a passport which had expired at the relevant point in time. The petitioner seeks re-issuance of his passport on its expiry. On the basis of the documents submitted, the respondent-Regional Passport Officer reissues the passport in favour of the petitioner. Later when the police verification is done as a routine in every case, it comes to the knowledge of the respondents that the petitioner is involved in a criminal case in Crime No.16 of 2021. Noticing the fact that the petitioner had suppressed the factum of pendency of a criminal case against him and had secured the passport by misrepresentation, issued a notice directing him to
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WP No. 26141 of 2022surrenders the passport. The involvement of the petitioner as an accused in Crime No.16 of 2021 is not in dispute. 'B' report is yet to be considered by the learned Magistrate. Therefore, the 'B' report being filed will not absolve the petitioner of the crime. Section 6 of the Act reads as follows:
"6. Refusal of passports, travel documents, etc.--(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or 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 may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;
(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;
(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;
(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.
(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;
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WP No. 26141 of 2022
(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 ofIndia;
(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) Shat 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
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not be in the public interest."
(Emphasis supplied) Section 6 deals with refusal of passport and travel documents etc. Section 6(2)(f) mandates that if proceedings are pending in respect of an offence alleged to have been committed by the applicant before a criminal Court in India, the passport authority would have the right to refuse issue of passport or travel documents for visiting any foreign country. Therefore, issuance of passport or re-issuance of passport is subject to Section 6(2)(f) of the Act.
9. It is an admitted fact in the case at hand that a crime in Crime No.16 of 2021 is pending against the petitioner. The Police having filed a 'B' report in the matter would not mean that proceedings against the petitioner have culminated in her acquittal. The rigour of Section 6(2)(f) of the Act gets evaporated only when the applicant who is facing criminal proceedings or a FIR is acquitted, discharged or the proceeding against the said applicant is quashed by a competent Court of law, in exercise of its powers under Section 482 of the Cr.P.C. None of these circumstances exist in the case at hand. All that has happened is, the Police have filed a 'B' report. Mere filing of 'B' report would not mean that the petitioner becomes allegation free qua Section 6(2)(f) of the Act. The contention of the learned counsel appearing for the petitioner that a wrong provision is invoked to direct surrender of passport is also unacceptable. The communication dated 21- 10-2021 reads as follows:
"To Dated: Oct 21, 2021
Kajal Naresh Kumar,
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WP No. 26141 of 2022
D/o Naresh Kumar, No.191, 3rd Stage,9th Cross, Gokulam, Mysuru City Karnataka, India, Pincode 570 002.
Subject: Clarification required regarding issuance of Passport facilities to Shri/Smt/Kumari/Master KAJAL NARES KUMAR.
Dear Applicant.
This is in reference to receipt of an adverse Police Verification report corresponding to your application for Passport ReIssue, with file No. BNM073564334521, dated 09-09-2021. You may recall that a passport bearing passport number V2615889 dated 09-09-2021 was dispatched to you by this office on the basis of your application dated 8-09-2021.
Police report adverse remarks as:
"Frequently checking the applicant criminal background in station documents a case registered against her in v.v. puram police station cr.No.16/2021 u/s 403, 406, 417, 120B, 380 r/w 34 IPC in this case submitted B report but honourable court is not accepted still"
You are therefore, called upon to provide a suitable explanation and submit a fresh application with correct details. Please note that you are required to furnish a proper explanation regarding the circumstances under which you had suppressed the material information in your passport application and obtained the above said passport.
This show cause notice is issued to you due to the reason mentioned below:-
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Also state why action should not be taken to impound the passport number V2615889 dated 09-09-2021 under Section of the Passports Act, 1967 and Section 12(1)(b) of the Passports Act, 1967 should not be initiated against you. Please quote the reference number mentioned in the top block of this letter for further correspondence."
The communication is in the nature of show cause notice issued under Section 12(1)(b) of the Act. Section 12(1)(b) of the Act reads as follows:
"12. Offences and penalties.--(1) Whoever--
... ... ...
(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document."
Section 12 deals with offences and penalties. Section 12(1)(b) of the Act makes any person who knowingly furnishes false information or suppresses any material with a view to obtain a passport or travel documents open for punishment under Section 12. It is an admitted fact that the petitioner applied for re-issuance of passport in the teeth of pendency of the criminal case in Crime No.16 of 2021. The passport authorities issued the passport on the statement made by the applicant/petitioner herein. After the dispatch of the passport, when routine police verification took place, it is then the passport authorities come to know that the petitioner had suppressed the fact of pendency of the crime in Crime No.16 of 2021, the result of which was the
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WP No. 26141 of 2022impugned communication seeking surrender of passport which has been obtained by suppression of pendency of criminal case. This would become directly attributable to the petitioner as clause 7 of the application which deals with 'other details' mandates such divulgence. Clause 7 of the application reads as follows:
"7.1. Provide the following details if there are any criminal proceedings, warrant pending against you and attach NOC from the court to depart from India."
In terms of the afore-quoted clause 7.1, the applicant is supposed to divulge details of any criminal proceedings, warrant pending against the applicant and also is required to attach a no objection certificate from the Court to depart from India. This obligation is admittedly not fulfilled by the petitioner.
10. The submission of the learned counsel for the petitioner that since the police had filed the 'B' report, the petitioner being a novice who does not know the consequence of law has not furnished the same. But, that very clause mandates seeking of NOC from the concerned Court to depart from India. Therefore, no fault can be found with the 1st respondent issuing notice under Section 12(1)(b) of the Act, directing surrender of passport which had admittedly been obtained by suppressing involvement in crime and further directing submission of fresh application divulging all details.
11. It is for the petitioner to submit a fresh application before the authorities and also approach the concerned Court where proceedings in Crime No.16 of 2021 are pending consideration seeking any direction to travel abroad, as the application itself requires an NOC from the Court to depart from India.
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WP No. 26141 of 2022Therefore, without quashing the impugned communication which is in consonance with law, I deem it appropriate to direct the petitioner to approach the concerned Court for redressal of the grievance. This Court would not lend its discretionary jurisdiction under Article 226 of the Constitution of India to the petitioner who admittedly had suppressed the fact of pendency of crime before the passport authorities.
12. With the aforesaid observations, finding no merit to entertain the petition for the prayer that is sought, the petition stands disposed."
Ordered accordingly."
(Emphasis supplied) In the light of the afore-extracted order, which covers the issue on all its fours, it is clarified that the petitioner shall submit a fresh application before the authorities and also approach the appropriate Court, seeking any direction to travel abroad, as the application itself requires an NOC from the concerned Court to depart from India.
This order shall be treated as part and parcel of the order dated 12.01.2023.
Sd/-
JUDGE nvj List No.: 1 Sl No.: 45