HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.23942 of 2023
ORDER:
Heard the learned counsel appearing on behalf of the petitioner, the Learned Standing Counsel for Union of India representing Mr.Gadi Praveen Kumar, the Dy.
Solicitor General of India, appearing on behalf of respondent Nos.1 and 2 and of learned Government Pleader for Home, appearing on behalf of respondent Nos.3 to 6.
PERUSED THE RECORD.
2. The petitioner approached the Court seeking the prayer as follows:
"to issue an appropriate Writ Order or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings bearing letter Ref.No.IMP/312450419/22, dt: 12.04.2022 issued by the 2nd respondent as illegal and arbitrary and consequently set aside the same and further direct the Respondent Nos.1 and 2 to release the Passport of the Petitioner bearing No.3332679 and pass such other or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case." 2
SN,J WP_23942_2023
3. The learned Government Pleader for Home, brings to the Notice of this Court the Written instructions, dated 30.08.2023 issued by the Sub-Inspector of Police, Women Police Station, South East Zone, Hyderabad, the relevant last paragraphs of the said Written instruction, reads as under:
"It is pertinent to mention here that NBW is issued against the petitioner/A-1 in C.C.No.14243 of 2019 on the file of the Hon'ble XIII Addl. Chief Metropolitan Magistrate, Hyderabad. It is submitted that except executing the NBW against the petitioner, the respondent No.6 Station House Officer, Women Police Station Central Crime Station DD Hyderabad did not take any coercive action against the petitioner in any manner.
It is submitted that as stated above, the Writ Petition is liable to be dismissed against the respondent No.6 Station House Officer, Women Police Station Central Crime Station DD Hyderabad."
4. The Regional Passport Officer, Hyderabad issued Written Instructions, vide No.HYD/843/28(131)POL/LC/2023, dated September, 2023, the particular paragraph Nos. 4 to 7 of the said Written Instructions reads as under:
"4. The Passport bearing No.N3332679 dated 30.09.2015 has been impounded by this Office in 3 SN,J WP_23942_2023 view of his pending Court case vide Crime No.184/2019 U/s.498-A, 406 at WPS DD Hyderabad in C.c. No.14243 of 2019 as a Warrant of Arrest is issued by the Court of the XIII Addl. Chief Metropolitan Magistrate, Mahila Court, Hyderabad.
5. The Petitioner is presently abroad at Australia and the Writ petition is filed by his representative GPA holder Shri.Mohammed Nusrathullah Khan, who is also the biological father of the petitioner.
6. The Competent Authority can refuse the passport services to the Petitioner under Section 5(2)(c) of the Passports Act, 1967, to be read with Section 6(2)(f), in view of pending court case.
7. The petitioner can approach the nearest Embassy of India and request for Passport and in view of his pending Court case and the present Passport bearing No.N3332679 is impounded, he will be issued with Emergency Certificate to travel to India and accordingly, he can attend the court hearings.
5. A perusal of the letter issued by the Regional Passport office, Hyderabad, dated 12.04.2022 clearly indicates that the same has been passed in a mechanical manner and the particular paragraph 4 SN,J WP_23942_2023 Nos.6,7 and 8 of the said letter, dated 12.04.2022 extracted as under:
" 6. The High Court issued a Show Cause Notice to MEA, RPO, CCS & Tahura maryam on 11.06.2021 and ordered an explanation from these four respondents. Regional passport office explanation is still pending in front of the Hon'ble Court, no one has addressed the explanation to the court after attending the hearing at the High Court and to my surprise I've received this email to furnish the explanation that why RPO should not impound my passport? Can I ask for an explanation as to why the RPO is so eager to take action on my passport when they already received a notice from the High Court not to insist on me surrendering my passport? And after that notice, RPO wants to impound my passport, why?
7. I need an explanation from the passport authorities as to why i should bear this insult towards me & my family when the case is still pending at the Hon'ble Court, when the court has already ordered RPO not to insist upon surrendering our passports then why am I still being threatened by the passport authorities for impounding my passport? I've been trying my best to keep it clear and legal infront of everyone during this case. When I am cooperating with everyone then why am I not getting the same 5 SN,J WP_23942_2023 response? Half of my life has been ruined by that girl and still everyone is on her side, she being false and I being true to everyone. Still I have not been convicted of any charges by the court yet. This is a family case but why is it represented as a criminal case?
8. RPO has every right to impound any of the citizen's passports if they are convicted or involved in any criminal act. This case can only be valid when the divorce has not been finalized. When I processed the divorce, my ex-wife received three divorce petitions, if she had filed the case at the first or second divorce petition then this case would be valid. At the third divorce petition divorce is finalized. Three divorce petitions are not issued in a single attempt. Every month she received a divorce petition notice onto which she never responded. She had plenty of time while the divorce was being finalized. Now, claiming to be my wife after divorce is illegal in front of the law."
6. The High Court of Jabalpur passed Judgment, reported in I.L.R(2018) M.P. pg.677 in between Navin Kumar Sonkar Vs. Union of India and others in W.P.No.19148 of 2017, dated 12.01.2018, in particular 6 SN,J WP_23942_2023 at paragraph Nos.8,9, 10 and 13 of the said judgment reads as under:
8. On perusal of the aforesaid provisions, it is crystal clear like a day light that in case the proceedings in respect to an offence allegedly have been committed by the holder of the Passport and a criminal case is pending in a competent Court then assigning the reasons why revocation or impounding of the passport or travel document is necessary, the competent Authority may pass an order, and supply its copy to the holder on demand made, except for the reason of the security and integrity of the public at large.
9. On perusal of the impugned order, the authority merely referred that a criminal case is pending in the Court, against petitioner, however, as per Section 10(3)(e) of the Passport Act, directed to impound the Passport of the petitioner. In this regard, it can safely be observed that pendency of a criminal case in a Court, may be a cause to the Passport Officer to initiate an action under Section 10(3)(e) of the Passports Act, but it cannot be treated to be the reason for impounding of the Passport. The reasons for such impounding may be different, such as, the authority has received the information that petitioner would not appear as and when required in the Court or he would abscond in the case or engaged in the activity affecting the integrity and internal security of the country. Therefore, mere pending criminal case may give a cause to initiate the action to the Passport Officer, but it cannot be the reason for impounding the Passport. In this regard, it can safely be observed that as and when the Passport Officer has to take an action in exercise of the power of Section 10(3)(e) of the Passport Act, he ought to understand the nature of the criminal case also pending against the person.
On perusal of the allegation in the criminal case, it is apparent that the sister-in-law(Bhabhi) of the 7 SN,J WP_23942_2023 present petitioner lodged an FIR with respect to dowry demand against her husband joining all the family members as accused, wherein the petitioner being brother of husband also joined as an accused.
In the criminal cases of demand of dowry Judicial notice can safely be taken that in most of the offences registered under Order 498A, all the family members are joined as accused to pressurize the family of the groom, though the family members resides separately, or may be in the different city or even the abroad. However, in such circumstances, mere registration of criminal case of demand of dowry is not sufficient to pass the order of impounding the passport without considering all these aspects, or without assigning the cogent reasons. In this regard and the judgment in the case of Shashank Shekar(supra) would aptly apply to the facts of the present case, whereby the order passed by the Passport Authority under Section 10(3)(e) of the Passports Act, was setaside due to not assigning the reasons. The Judgment in the case of Manish Mittal(Supra) of Delhi High Court is also relevant, wherein the Court has observed that in case the order of impounding/revocation of the Passport has been passed, contrary to the provisions of the law, then mere pendency of the appeal is of no consequence, and it cannot be a ground to dismiss the writ petition.
10. In view of the foregoing discussion, it is apparent that the order passed by the Passport Officer, Bhopal is not in conformity to the spirit of Section 10(5) of the Passport Act, therefore, it is not necessary to relegate the matter to the Appellate Authority to pass the final order, on the representation of the petitioner however the said argument is hereby repelled.
13. Accordingly, this petition succeeds and is hereby allowed. Respondent Nos. 1 and 2 are directed to issue the Passport of the petitioner within 8 SN,J WP_23942_2023 a period of two weeks on furnishing an affidavit by the petitioner to the Passport Authority specifying that as and when required he shall tender his appearance in the criminal case as referred in the show cause notice. After releasing the said Passport, if petitioner decides to go on foreign trip then such information be furnished to the Court and on reaching at the destination, he shall furnish the address of his residence and the office where he is working on an affidavit authenticated by the notary at a place where he is residing. In the affidavit it be also mentioned that as and when any adverse order is passed by the Court in the said criminal case against him, he shall tender his appearance within a month from the date of the order. In the facts parties are directed to bear their own costs."
7. The Apex Court also in its judgment dated 27.07.2017 passed in Criminal Appeal No.1265 of 2017(arising out of Special Leave Petition (Crl.) No.2013 of 2017) in Rajesh Sharma and others Vs. State of U.P. and another, in particular at paragraph no.19(v) it is specifically observed as under:
"In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine."
8. Taking into consideration the view taken by the High Court of Jabalpur, in the Judgment passed in W.P.No.19148 of 2017, dated 12.01.2018 and also the 9 SN,J WP_23942_2023 view taken by the Hon'ble Apex Court in its judgment dated 27.07.2017 passed in Criminal Appeal No.1265 of 2017(arising out of Special Leave Petition (Crl.) No.2013 of 2017) in Rajesh Sharma and others Vs. State of U.P. and another, the Writ petition is allowed setting aside the Proceedings dated 12.04.2022 issued by the 2nd respondent directing the petitioner to submit the passport to the passport office with immediate effect.
However there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________________ MRS JUSTICE SUREPALLI NANDA 6th September, 2023 ksl 10 SN,J WP_23942_2023 THE HON'BLE MRS JUSTICE SUREPALLI NANDA WRIT PETITION No.23942 of 2023 DATED:06.09.2023 ksl.