Telangana High Court
Pervez Mohammad Abdulparvez Mohammad ... vs Union Of India on 26 October, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.37832 OF 2022
ORDER:
Heard Mr. Ponnam Mahesh Babu, learned counsel for the petitioner and Mrs. Anjali Agarwal, learned Standing Counsel appearing for respondent No.2.
2. This writ petition is filed to declare the inaction of respondent No.2 in renewing the passport after submission of application as per the provisions of Act vide application in File No. HY1074507943922 dated 19.08.2022 as illegal, and for a consequential direction to respondent No.2 to renew and release the passport.
3. The petitioner herein is the holder of passport bearing No.F3307870. It was expired on 18.04.2015 itself. However, he had filed an application bearing No.HY1074507943922 on 19.08.2022 with respondent No.2 to renew his passport. Having received and acknowledged the said application, respondent No.2 did not act upon the same. Therefore, the present writ petition. 2
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4. Learned counsel for the petitioner would submit that the petitioner herein is an accused in several crimes, and on the ground of involvement of the petitioner in the crimes, respondent No.2 cannot deny passport to the petitioner and it cannot keep the application submitted by the petitioner for renewal of passport pending.
5. However, Mrs. Anjali Agarwal, learned Standing Counsel for respondent No.2, would submit that the petitioner herein is an accused in eight (08) criminal cases and the said cases are pending before various Courts. Therefore, as per the provisions of the Passports Act, 1967, Rules made thereunder and the Circular Notification No.GSR 570 (E), dated 25.08.1993, the petitioner is not entitled for renewal of his passport. According to her, the police have issued rowdy-sheet against the petitioner and they are maintaining the same as on today. Therefore, the petitioner is not entitled for renewal of his passport.
6. In view of the above rival submissions, it is relevant to extract Section - 6 of the Passports Act, 1967 and the same is as under:
"6. Refusal of passports, travel documents, etc.--
(1) xxxxx 3 KL,J W.P. No.37832 of 2022 (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 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;4
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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."
7. It is also relevant to extract the aforesaid Notification No.GSR 570(E), dated 25.08.1993 and the same is as under:
"G.S.R. 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.G.S.R.298(E), dated the 14th April 1976, the Central Government, being of the opinion that it is necessary in 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 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 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; or 5 KL,J W.P. No.37832 of 2022 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 court 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 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."
8. It is also relevant to note that referring to the provisions of the Passports Act, 1967 and also the aforesaid Notification dated 25.08.1993, respondent No.1 had issued office memorandum dated 10.10.2019 with regard to the issuance of passports to applicants against whom criminal cases are pending before a Court of law and the guidelines have been issued which are as under:
(i) The provisions o f GSR 570(E) may be strictly applied in all cases.
GSR 570(E) is a statutory notification and hence forms part of the Rules. 6
KL,J W.P. No.37832 of 2022 It is to be noted that as per Section 5(2) of the Passports Act, 1967, the passport authority shall by order in writing take a decision whether to issue or refuse a passport, after making such inquiry, if any, as it may consider necessary. Moreover, Section 7 of the Passports Act, provides that a passport or trowel document may be issued for a shorter period than the prescribed period if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period. Rule 12 of the Passport R u l e s , 1 9 8 0 only states that an ordinary passport shall be in force for a period of 10 years which implies that an ordinary passport cannot be issued beyond a period of 10 years.
(ii) Whenever an applicant is submitting a 'No Objection Certificate' (NOC) from a Court of law in India, the applicant should be advised that undertaking as per GSR 570(E) should be complete in all respects and should mention all the pending criminal cases against the applicant. The undertaking will have a note clearly stating that if any false or incomplete information is submitted by an applicant, then his passport application is liable to be rejected.
(iii) Extant instructions clearly lay down that such applications should be processed on pre-Police Verification (PV) mode. "Pre-PV" would be mandatory in all cases of applications submitted with GSR 570(E) to ensure that the undertaking submitted by the applicant is properly matched with the criminal cases mentioned in the Police Verification Report (PVR). Hence, such applications should not be accepted under Tatkaa1 nor such applications be moved to "post-PV" mode or "No-PV" mode without proper justification and approval to be recorded in writing.
(iv) If an undertaking is incomplete or misleading and the applicant is found to have suppressed details of other criminal cases against the applicant, a Show Cause Notice should be issued to the applicant and action initiated against that applicant as per provisions of Section 12 of the Passports Act, 1967. II information that an applicant has obtained a passport by making a false submission or by suppressing material facts comes to light after the passport has been issued, the passport may be impounded or revoked as per provision of Section 10(3) (b) of the Passports Act, 1967, after following the due procedure.
(v) In case where the first Police Verification (PV) is 'Adverse', secondary police verification may be generated. While a secondary PV is generated, it should be accompanied by a detailed letter seeking clarification regarding the pending criminal cases against the applicant and the status of these cases. Apart from generating secondary PVR, the passport officers may, if considered necessary, call for discreet enquiry through the police authorities by sending the court order 7 KL,J W.P. No.37832 of 2022 submitted by the applicant or even seek verification from other government agencies/departments, as the case may be.
(vi) In case where the secondary Police Verification is also 'Adverse', it may be examined whether the details brought out in the police report match the undertaking submitted by the applicant. It may be noted that were filing of FIRs and cases under investigation do not come under the purview of Section 6(2)(f) and that criminal proceedings would only be considered pending against an applicant if a case has been registered before any Court of law and the court has taken cognizance of the same.
(vii) If the details given in the police report and the undertaking submitted by the applicant are matching, then the 'No Objection Certificate' issued by a Court of law submitted by the applicant would take precedence over any 'Adverse' report submitted by the police. In such cases, the 'Adverse' report may be overruled with the written approval of the Passport Officer.
(viii) If the details given in the PVR and the undertaking submitted by the applicant are at variance, then a notice may be issued to the applicant calling for clarification and advising the applicant to submit details of all pending criminal cases as well as to submit a revised No Objection Certificate (NOC).
(ix) If it is brought to the notice of the authority that an applicant has criminal proceedings arrayed against applicant before several courts of law, then the applicant may be advised to get NOC from all the concerned court(s). Nominally, the Court Order would make a mention of the cases pending against the applicant as well as the prayer wade by the applicant, This may be examined along with the undertaking submitted by the applicant and complaints orders if any, that may have been received against the applicant.
(x) It may noted that GSR 570(E) only exempts an applicant from the operation o1" Section 6(2)(f) and none of' the other sub-sections o1"
Section 6(2) of the Passports Act, 1967.
(xi) A revised Undertaking under GSR 570(E) is attached at Annexure 'A'.
(xii) Passport Officers may issue an internal SOP along the above lines so that there is no confusion in handling of applications that would attract provisions of section 6 (2) (I) of the Passports Act, 1967."8
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9. It is also relevant to note that the Apex Court in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation1 had an occasion to examine the provisions of the Passports Act, pendency of criminal cases and held that refusal of a passport can be only in case where an applicant is convicted during the period of five (05) years immediately preceding the date of application for an offence involving moral turpitude and sentence for imprisonment for not less than two years. Section 6.2 (f) of the Act, relates to a situation, where the applicant is facing trial in a criminal Court. The petitioner therein was convicted in a case for the offences under Sections - 420, 468, 471 and 477A read with 120B of the IPC and also Section - 13 (2) read with Section 13 (1) of the Prevention of Corruption Act, 1988. Against which, an appeal was filed and the same was dismissed. The sentence was reduced to a period of one (01) year. The petitioner therein had approached the Apex Court by way of filing an appeal and the same is pending. Therefore, considering the said facts, the Apex Court held that passport authority cannot refuse renewal of the passport on the ground of pendency of the criminal appeal. Thus, the Apex Court directed the Passport Authority to renew the passport of the applicant 1 . 2020 Crl.L.J. (SC) 572 9 KL,J W.P. No.37832 of 2022 without raising objection relating to the pendency of the aforesaid criminal appeal in the Hon'ble Supreme Court.
10. In the present case, the petitioner is an accused in the following cases:
S.No. C.C. No. Name of the Court Offences 01. 791 of 2018 PJCJ-cum-XV AMM, Secs. - 420, 447, 427 & 506 IPC Ibrahimpatnam 02. 466 of 2015 PJCJ-cum-XXV AMM, Secs. - 447 & 323 r/w 34 IPC Ibrahimpatnam 03. 568 of 2015 -do- Section - 304-A IPC 04. 571 of 2015 -do- Secs.341, 323 and 506 of IPC 05. 653 of 2018 PJCJ-cum-XV AMM at Sec.384 of IPC L.B. Nagar 06. 785 of 2018 -do- Secs.452 and 384 of IPC 07. 1421 of 2015 VI AJCJ-cum-VI AMM, Secs.419, 420, 468 & 471 IPC L.B. Nagar 08. 1240 of 2016 -do- Sec.468 of IPC
11. All the aforesaid Calendar Cases are pending. In none of the above said cases, the petitioner was convicted by trial Court. However, the police have issued rowdy-sheet against the petitioner herein and they are maintaining the same as on today. Therefore, the petitioner herein is standing on better footing than the petitioner in Vangala Kasturi Rangacharyulu1. In view of the same, respondent No.2 cannot deny or refuse to renew the passport of the petitioner. However, if the petitioner is intending to travel abroad, he has to approach trial Court in the aforesaid criminal cases and obtain permission for travelling abroad. In the present writ petition, the 10 KL,J W.P. No.37832 of 2022 petitioner is not seeking permission to travel abroad, and he is seeking only renewal of his passport.
12. In view of the aforesaid discussion and also the principle laid down by the Apex Court in Vangala Kasturi Rangacharyulu1, Passport Authority cannot refuse renewal of the passport on the ground of pendency of criminal cases against the petitioner and issuance and maintenance of rowdy sheet against him.
13. Therefore, this writ petition is disposed of directing respondent No.2 to consider the application dated 19.08.2022 submitted by the petitioner seeking renewal of his passport on the following conditions:-
i) The petitioner herein shall submit an undertaking along with an affidavit before the learned Principal Junior Civil Judge - cum - XV Additional Metropolitan Magistrate, Ibrahimpatnam in C.C.No.791 of 2018 stating that he shall not leave India during pendency of the said C.C. and other C.Cs. without permission of the Court and that he shall co-operate with trial Court in concluding the proceedings in the said C.C. and other C.Cs.11
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ii) On filing such an undertaking as well as affidavit, the trial Court shall issue a certified copy of the same within two (02) weeks therefrom;
iii) The petitioner herein shall submit an application afresh along with certified copy of this order as well as the aforesaid undertaking before the Passport Officer/ Authority concerned for renewal of his passport;
iv) On filing such an application, the Passport Officer/Authority shall consider the same afresh in the light of the observations made by this Court herein as well as the contents of the undertaking given by the petitioner for renewal of his passport in accordance with law, within three (03) weeks from the date of said application; and
v) On renewal of the Passport, the petitioner herein shall deposit the original renewed passport before the trial Court in C.C.No.791 of 2018, pending on the file of learned Principal Junior Civil Judge - cum - XV Additional Metropolitan Magistrate, Ibrahimpatnam. 12
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vi) However, liberty is granted to the petitioner herein to file petition before the trial Court in the aforesaid calendar cases seeking permission to travel abroad.
In the circumstances of the case, there shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 26th October, 2022 Mgr