Allahabad High Court

Rajendra Bihari Lal vs Union Of India And Another on 9 May, 2023

Bench: Surya Prakash Kesarwani, Anish Kumar Gupta

HIGH COURT OF JUDICATURE AT ALLAHABAD

Neutral Citation No. - 2023:AHC:98993-DB

A.F.R.

Court No. - 3

Case :- WRIT - C No. - 36038 of 2022

Petitioner :- Rajendra Bihari Lal

Respondent :- Union Of India And Another

Counsel for Petitioner :- Anuj Srivastava,Amit Negi,Sr. Advocate

Counsel for Respondent :- A.S.G.I.,Gopal Verma

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Anish Kumar Gupta,J.

1. Heard Shri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Shri Amit Negi, learned counsel for the petitioner and Sri S.P. Singh, learned Additional Solicitor General of India assisted by Sri Gopal Verma, learned counsel for the respondent.

2. Briefly stated facts of the present case are that the petitioner has filed an application for renewal of his passport. Since no order was passed on his renewal application, therefore, the petitioner filed a Writ - C No. - 22637 of 2020 (Rajendra Bihari Lal Vs. Union Of India and another) which was disposed of by order dated 16.12.2020 directing the concerned Passport Authority to pass an order or in the event, order has already been passed then same be communicated. Thereafter, the respondent no.2 passed the impugned orders dated 06.06.2022 and 29.06.2022. By the impugned order dated 29.06.2022, the respondent no.2 has declined to issue passport to the petitioner on the ground of adverse police report based on several criminal cases registered against the petitioner but granted liberty to submit "no objection" of the concerned court to issue passport.

3. It has also been admitted before us by learned counsel for the petitioner that after filing of the present writ petition seven more criminal cases have been registered against the petitioner.

4. Learned Additional Solicitor General states on instructions that at present 18 criminal cases are registered against the petitioner.

5. Learned counsel for the petitioner has heavily relied upon a judgment of Hon'ble Supreme Court in Criminal Appeal No(s). 1342 of 2017 (Vangala Kasturi Rangacharyulu Vs. Central Bureau of Investigation) decided on 27.09.2021 and a judgment of Bombay High Court in Writ Petition No.384 of 2019 (Abbas Hatimbhai Kagalwala Vs. The State of Maharashtra and Anr.) decided on 23.08.2022.

6. We have carefully perused the judgment of Hon'ble Supreme Court in Criminal Appeal No(s). 1342 of 2017 (Vangala Kasturi Rangacharyulu Vs. Central Bureau of Investigation) decided on 27.09.2021 and we find that the appellant before Hon'ble Supreme Court was convicted in a Criminal Case and his appeal before the Hon'ble Supreme Court was pending in which an I.A. No.52346 of 2021 was filed seeking permission/direction for issuance of passport.

7. The judgment of Hon'ble Supreme Court in Vangala Kasturi Rangacharyulu (supra) passed on an I.A. No.52346 of 2021 is reproduced below :

"UPON hearing the counsel the Court made the following

O R D E R

IA 52346/2021 in Crl.A. No. 1343/2017

The applicant was convicted for offences punishable under Sections 120-B,420, 468, 471, 477 A of the Indian Penal Code read with Section 13 (2) read with Section 13 (1) of the Prevention of Corruption Act, 1988. The appeal filed by him was dismissed by the High Court. However, the sentence was reduced to a period of one year.

The application for exemption from surrendering filed by the applicant was allowed. Leave was granted in the criminal appeal filed by the applicant on 12.07.2017. The appeal is pending consideration.

In the meanwhile, the applicant has filed this application for a direction to the respondent to give no objection for renewal of his passport which expired on 12.11.2017. The applicant has contended that the application filed by him for renewal of passport was not considered. In spite of his repeated efforts, including filing of an application under the Right to Information Act, he was not informed the reason for non renewal of his passport. It is averred in the application filed for direction that the application was orally informed that the renewal of the passport was not being done due to the pendency of the criminal appeal in this Court.

Mr. J.K.Sud, learned Additional Solicitor General appearing for the respondent oppose the application and submitted that renewal of passport can be only after application obtains permission from the concerned trial court. He referred to Section 6.2 of the Passport Act, 1967 and argued that the passport authority has the power to refuse issuance of the passport in view of the pendency of the criminal appeal filed by him. He submitted that sub-Section 6.2 (e) and (f) of the Passport Act, 1967 would be applicable to this case and the applicant is not entitled to seek renewal passport without obtaining permission from the trial court.

Section 6.2 of the Passports Act, 1967 reads as follows:

x x x x x x x x x x

(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.,

(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;

(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.

The refusal of a passport can be only in case where an applicant is convicted during the period of 5 years immediately proceeding the date of application for an offence involving moral turpitude and sentence for imprisonment for not less than two years.

Section 6.2 (f) relates to a situation where the applicant is facing trial in a criminal court.

Admittedly, at present, the conviction of the appellant stands still the disposal of the criminal appeal. The sentence which he has to undergo is for a period of one year. The passport authority cannot refuse the renewal of the passport on the ground of pendency of the criminal appeal.

The passport authority is directed to renew the passport of the applicant without raising the objection relating to the pendency of the criminal appeal in this Court. Subject to the other conditions being fulfilled, the Interlocutory Application stands disposed of."

(emphasis supplied by us)

8. The judgment of Bombay High Court in Abbas Hatimbhai Kagalwala (supra) heavily relied by learned counsel for the petitioner is reproduced below :

"1. The Petitioner had applied for renewal of the Passport. Said application is not being entertained for the reason that the Petitioner should obtain a permission from the Court where a criminal case is pending against the Petitioner.

2. Learned Counsel for the Petitioner submits that for renewal of the Passport, permission from the Court where a criminal case is pending against the Petitioner, is not necessary. If a criminal case is pending, then the only limitation would be, the Petitioner can not travel abroad without the permission from the Court where a criminal case is pending against the Petitioner. He relies upon order passed by the Apex Court in Criminal Appeal No.1342/2017 dated 27.9.2021.

3. Learned Counsel for the Union relies upon Notification dated 25.8.1993 and Section 6.2 (f) of the Passport Act, 1967, to conclude that the Petitioner has to obtain a permission of the Court where criminal case is pending against the Petitioner for the purpose of issuance of the Passport. It will be a case of issuance of the Passport and not renewal of the Passport.

4. It is the case of the Petitioner that validity of the Passport came to an end in the year 2017. The Petitioner applied for renewal and said application is pending for more than 4 years. It is also a fact that a criminal case is pending against the Petitioner u/s 420, 465, 467 r/w 120-B of the Indian Penal Code.

5. In view of the fact that petitioner is already issued a Passport earlier and the Petitioner would be seeking renewal of the Passport and the said application is pending with the Respondent, so also, considering the Order passed by the Apex Court in Criminal Appeal No.1342/2017 (supra) we pass the following order.

Order

i) The Respondent shall process the application of the petitioner for renewal of Passport without insisting for permission of the Court, where a criminal case is pending against the Petitioner. If the Petitioner is travelling abroad, then the Petitioner would be required to seek permission from the Court where criminal case is pending.

ii) Decision shall be taken as observed above, within 2 months.

iii) The impugned communication is quashed and set aside.

iv) If as per procedure on-line application is required to be made, the same shall be made by the Petitioner.

6. The petition is disposed of.

7. No costs."

(emphasis supplied by us)

9. The judgment of Hon'ble Supreme Court in the case of Vangala Kasturi Rangacharyulu (supra) is of no help to the petitioner on facts of the present case inasmuch as some criminal cases against the petitioner are pending before the trial court while in some criminal cases investigation is in process. In the aforesaid judgment Hon'ble Supreme Court observed that Section 6(2) (f) of the Passport Act, 1967 relates to a situation where the applicant is facing trial in a Criminal Court. In the present set of facts the petitioner is facing trial in a Criminal Court. Thus the judgment of Hon'ble Supreme Court in the case of Vangala Kasturi Rangacharyulu (supra) is of no help to the petitioner.

10. So far as observations in the judgment of Bombay High Court in Abbas Hatimbhai Kagalwala (supra) directing to process passport renewal application without insisting for permission of the court where a criminal case is pending, is concerned we do not agree as it is in conflict with Section 6(2)(e)/(f)/(g) and Section 22 of the Passport Act, 1967 and the Notification No.GSR 570(E).-I, dated 25.08.1993. In the aforesaid case the Bombay High Court has relied upon the judgment of the Apex Court in Vangala Kasturi Rangacharyulu (supra), which was passed by the Apex Court on I.A. No.52346 of 2021 filed in the Criminal Appeal pending before it, seeking permission/direction for issuance of passport. For ready reference Clauses (e), (f) and (g) of sub Section (2) of Section 6 of the Passport Act, 1967, are reproduced below :

"(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)....

(b)....

(c)....

(d)....

(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;

11. Thus, as per legislative mandate of Clauses (e), (f) and (g) of sub Section (2) of Section 6 of the Passport Act, 1967, the passport authority shall refuse to issue a passport or travelling document for visiting any foreign country on the ground mentioned in Clauses (a) to (i). The opening words of sub Section (2) of Section 6 are that "subject to the other provisions of this Act". Therefore, the passport or travelling document may be issued by the passport authority if an applicant obtains permission from the concerned court where the criminal case is pending, in terms of Section 22 read with Notification No.GSR 570(E).-I, dated 25.08.1993 issued by the Government in exercise of powers conferred under Clause (a) of the Section 22 of the Passport Act, 1967. It is settled law that a writ of mandamus can not be issued in conflict with the statutory provisions. Consequently writ of mandamus can not be issued in favour of the petitioner and against the Passport Authority, in conflict with the aforequoted Clauses (e), (f) and (g) of sub Section (2) of Section 6 of the Passport Act, 1967. If Clauses (e), (f) and (g) of sub Section (2) of Section 6 of the Passport Act, 1967 are differently interpreted then it may render redundant the said provisions on one hand and on the other hand it may adversely effect completion of investigation and conclusion of trial in a criminal case. Thus to enable the passport authority to lift the statutory mandate of refusal contained in Section 6(2) of the Passport Act, 1967 to issue a passport or a travel document, it is mandatory for an applicant to obtain permission from the Court where the applicant is facing trial, in terms of Section 22 read with the Notification No.GSR 570(E).-I, dated 25.08.1993.

12. We also find that the impugned order is appealable under Section 11 of The Passport Act, 1967, therefore, the petitioner may avail the remedy of Appeal. He may also apply for permission before the concerned Court under Section 22 of the The Passport Act, 1967 read with Notification No.GSR 570(E).-I, dated 25.08.1993.

13. With the aforesaid observations, the writ petition is dismissed leaving it open for the petitioner to avail alternative remedy of appeal. If the petitioner files an appeal before the Appellate Authority under Section 11 of The Passport Act, 1967 within three weeks from today alongwith a certified copy of this order, the appeal of the petitioner shall be entertained by the Appellate Authority without raising any objection as to the limitation.

14. It is made clear that we have not expressed any opinion on merits of the case of the petitioner.

Order Date :- 9.5.2023/vkg