Smt. Rashmi Kapoor vs Union Of India Thru. Ministry Of ...
2022 Latest Caselaw 5304 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 
Case :- WRIT - C No. - 3617 of 2022
 
Petitioner :- Smt. Rashmi Kapoor
 
Respondent :- Union Of India Thru. Ministry Of External Affairs, Govt. Of India, New Delhi And Others
 
Counsel for Petitioner :- Vidhu Bhushan Kalia,Rajat Rajan Singh,Vaibhav Kalia
 
Counsel for Respondent :- A.S.G.I.
 

 
Hon'ble Rajan Roy,J.

Hon'ble Syed Waiz Mian,J.

Heard Mr. Vidhu Bhushan Kalia, learned counsel for the petitioner and Mr. S.B. Pandey, learned Assistant Solicitor General of India assisted by Mr. Varun Pandey, learned Central Government Counsel on behalf of the respondents/Union of India.

The petitioner herein had earlier filed a writ petition before this Court bearing Writ-C NO.2324 of 2022; Rashmi Kapoor Vs. Union of India and others challenging an order dated 13.01.2021, passed by the Regional Passport Officer declining to renew the petitioner's passport/extend the same. The Court was of the view that the petitioner shall submit her reply to the show cause notice dated 7.1.2022 upon which the Regional Passport Officer shall take a decision on the prayer for renewal of the passport expeditiously, say, within a period of fifteen days from the date reply to the show cause notice along with the certified copy of the order is furnished before him. The Court disposed of the writ petition inter alia with the observation that the order to be passed by the Regional Passport Officer will have to be reasoned and speaking. The order impugned therein dated 13.01.2021 was made subject to the decision which was to be taken by the Regional Passport Officer.

Now, this petition has been filed challenging the subsequent decision by the Regional Passport Officer on 24.05.2022 which according to the petitioner is also an unreasoned order as it only mentions the pendency of a criminal case bearing no.703 of 2015, under Section 9-CH/10 of POCSO Act and Section 305 of I.P.C. which is obviously on account of the provisions contained in Section 6 (2) (f) of Passport Act, 1967.

Learned counsel for the petitioner submits that no doubt the said criminal proceedings had been initiated against the petitioner who was a Teacher in a private school at Gonda but the said proceedings have been stayed by this Court on 7.10.2016 in Case No.6423 of 2016, under Section 482 Cr.P.C. which is still pending.

This Court in the case of Writ Petition No.31723 (MB) of 2018; Salim Khan Vs. Union of India and others decided on 20.11.2018 after considering the provisions of Section 6 (2) (f) of the Passport Act, 1967, Section 22 (a) thereof and the notification dated 25.08.1993 issued by the Central Government, under Section 22 (a) of the Act, 1967 and a judgment of Division Bench of Delhi High Court rendered in Writ Petition (C) No.1524 of 2015; Prashant Bhushan Vs. Union of India and another wherein it has opined that restriction under Section 6 (2) (f) of the Act, 1967 is not absolute but the same can be relaxed in appropriate cases with the permission of the Courts in which criminal proceedings are pending. This Court also noticed the opinion of the Delhi High Court that the object behind the aforesaid provision appeared to be permitting a person facing criminal charges to go abroad was against the interest of the State and the society at large. It was held that the restriction was not absolute. Accordingly, this Court disposed of the petition with liberty to the petitioner to move an appropriate application before the Court of criminal jurisdiction where the trial was pending against him seeking permission to go abroad and if such permission was granted to move the appropriate authority thereafter for issuance of a passport, which shall be considered in the light of the law on the subject. The said case was also of non-issuance of passport.

On being confronted with the judgment of this Court dated 20.11.2018 passed in Writ Petition No.31723 (MB) of 2018; Salim Khan Vs. Union of India and others Mr. Kalia submitted that as the trial had been stayed by the High Court in exercise of its powers under Section 482 Cr.P.C. therefore there was no criminal trial pending as such the provisions of Section 6 (2) (f) of Passport Act, 1967 as referred hereinabove do not come into play. However, the Court is not convinced by this argument for the reason that merely on account of the said stay it cannot be stated that the trial is not pending, what it means is that the trial which is pending shall not proceed and shall not be taken to its conclusion. Even if the contention of petitioner's counsel is accepted, the fact remains that the proceedings under Section 482 Cr.P.C. referred hereinabove arising from the same trial are pending before the High Court wherein the trial has been stayed, therefore, in view of the aforesaid judgment dated 20.11.2018 passed in the case of Salim Khan (supra) the petitioner can apply before the High Court in the aforesaid proceedings which are pending seeking permission/direction for renewal of passport.

As regards reliance placed upon the judgment of the Hon'ble Supreme Court in the case of Vangala Kasturi Rangacharyulu Vs. Central Bureau of Investigation; Criminal Appeal No.1342 of 2017 is concerned, in the said case the appellant had been convicted under Section 120-B, 420, 468, 471, 477-A I.P.C. read with Section 13 (5) of Prevention of Corruption Act, 1988 against which the appeal was dismissed by the High Court but it reduced the sentence to one year. Thereafter, the appeal was filed and was pending before the Supreme Court. During its pendency the application for renewal of passport was rejected. Therefore, the observations made therein have been made with reference to Section 6 (2) (e) of the Act, 1967 which applies where the appellant seeking issuance/renewal of passport was at any time during the period of five years immediately preceding the date of its 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, which has been rejected. The appellant in said case was sentenced only for one year and it is doubtful if any moral turpitude was involved in the said case, therefore, apparently the prerequisites of Section 6 (2) (e) were not attracted in the said case.

The case at hand is referable to Section (2) (f) Act, 1967 and not Section 6 (2) (e) read with Office Memorandum dated 25.08.1993 of the Government of India issued under Section 22 (a) of the Act, 1967, an aspect which has already been considered by this Court in the case of Salim Khan (supra). The judgment of Hon'ble the Supreme Court in the case of Vangala Kasturi Rangacharyulu (supra) does not lay down that no such permission is required from the Court where criminal proceedings are pending in terms of Section 6 (2) (f) of Passport Act, 1967 read with office memorandum dated 25.08.1993. Moreover, the said decision as has been rendered in appellate proceedings arising out of the criminal trial, which is not the case here, as, it is a petition under Article 226.

Moreover, as regards the order impugned not being in conformity with the earlier judgment of this Court, Mr. Pandey as also counsel for the petitioner have placed before the Court a subsequent order dated 20.06.2022, passed by the Regional Passport Officer which refers to the criminal case pending against the petitioner as also the provisions Section 6 (2) (f) of Passport Act, 1967 and absence of any permission by the competent Court for issuance/renewal of the passport. The order further goes on to say that in case any such permission is given by the competent Court the passport can be issued to the petitioner. The earlier orders dated 13.01.2021 and 24.05.2022 in fact stand superseded by the subsequent order dated 20.06.2022 wherein fresh reasons have been given. The Regional Passport Officer should however be cautious in future and comply the order of the Court in letter and spirit.

Mr. Pandey says that the renewal of a passport is akin to issuance of a passport.

As regards the contention of learned counsel for the petitioner that in the earlier order dated 13.01.2021 the Regional Passport Officer had stated that now there is no question of renewal/extension of the period of passport of the petitioner instead she would have to apply afresh, is concerned if there is a provision for renewal/extension of period of passport there can be no reason for not considering the same if the competent Court gives permission as referred above unless the opposite parties are able to show to the said Court itself that as per law it cannot be done and fresh passport will have to be applied.

With the aforesaid observations, writ petition stands disposed of.

.

(Syed Waiz Mian, J.) (Rajan Roy, J.)

Order Date :- 21.6.2022

Ram.