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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 HC-NIC Page 14 of 31 Created On Sat May 06 01:29:16 IST 2017 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.

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 HC-NIC Page 15 of 31 Created On Sat May 06 01:29:16 IST 2017 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."

7. The judgment of the Bombay High Court was followed by the Gujarat High Court in Dhiren Baxi Vs. Regional Passport Officer, Ahmedabad reported in AIR 2003 GUJARAT 108 and the Hon'ble Gujarat High Court issued the following directions:

10. Considering the aforesaid notification issued by the Central Government, as well as considering the judgment of the Bombay High Court, in my view, this petition is required to be allowed by giving opportunity to the petitioner to approach the concerned Magistrate with an appropriate application for permitting him to go abroad for a particular time limit. If the concerned Magistrate permits the petitioner to go abroad for a particular period on the basis of such order, it will be open for the petitioner to request the passport authority to grant him passport for a limited period, during which he is permitted to go abroad. The petitioner may accordingly approach the concerned criminal court, with a prayer to permit him to go abroad and if any such application is preferred, the concerned criminal court may decide such application in accordance with law. If the concerned criminal court, before whom the criminal cases are pending, permits the petitioner to go abroad, the passport authority may pass appropriate order in the HC-NIC Page 25 of 31 Created On Sat May 06 01:29:16 IST 2017 matter of issuing passport to the petitioner in terms of the order of the criminal court and subject to the conditions laid down by the Notification. As observed by the Bombay High Court, the passport authority, in future cases of a similar nature, may inform the applicants, against whom any criminal case is pending, about the Notification of the Central Government and may inform such applicant that they may approach the concerned and if any such order is passed by the Magistrate, permitting such applicant to go abroad, the passport authority may dispose of such applications in view of the Notification and in view of the provisions of the Passport Act. It is clarified that in case the criminal court permits the petitioner to go abroad, the passport authority shall act on the basis of such report for the purpose of issuing passport. The passport may not be refused solely on the ground of pendency of the present criminal cases in case the Magistrate so permits. It is clarified that if there are other grounds available to the passport authority to refuse the passport, it is for the authority to consider the same in accordance with law. The passport may not be refused solely relying on the present criminal cases, which are pending against the petitioner, in case permission is granted by the Magistrate as indicated above. It is also clarified that whether such application should be granted or not is within the jurisdiction of the competent criminal court and it is for the concerned Magistrate to decide such application, if at all the same is received from the present petitioner and it is for the Magistrate to decide the same in accordance with law and this Court has not expressed any opinion on the aforesaid subject.

14. The gamut of definitions of "criminal courts"

through various statutes indicates that they are courts of ordinary criminal justice i.e. Trial court contra distinguished to appellate court. They are courts constituted under the Code of Criminal Procedure, 1973 and other enactments to try offences. The High Court HC-NIC Page 29 of 31 Created On Sat May 06 01:29:16 IST 2017 exercising criminal appellate jurisdiction against a judgment of acquittal in the circumstances, to my mind, is not a court of ordinary criminal jurisdiction and for the limited purpose of Section 6(2)(f) of the Act of 1967, not be a criminal court. Consequently an appeal against acquittal pending in High Court in exercise of its criminal appellate jurisdiction would not entitle the Passport Officer to refuse an application for issue of passport or its renewal. This conclusion is based on the interpretation of the words "criminal court" limited to the manner they are referred to in Section 6(2)(f) of the Act of 1967, based on the definitions of the said words in statutes para materia, the need for a restrictive interpretation of laws impugning on fundamental rights of citizens, the need to harmonize an otherwise palpable interpretative absurdity arising from a literal and expansive reading of Section 6(2)(f) vis--vis Section 6(2)(e) where a convict suffering upto two years of sentence can not be refused a passport yet despite acquitted in a criminal case for reason of pendency of an appeal thereagainst, the issue of passport can be refused."