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Showing contexts for: REFUSAL OF PASSPORT in Shree Pradeep Kundalia vs Union Of India & Ors. on 15 June, 1998Matching Fragments
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.
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 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 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.