Vagala Venkata Siva Kumar vs The State Of Andhra Pradesh
2021 Latest Caselaw 519 AP

         THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI

         CRIMINAL REVISION CASE Nos.475 and 478 of 2020

COMMON ORDER:-

       Challenging the common order dated 20.10.2020 passed in

Crl.M.P.No.1685      of   2020     and    Crl.M.P.No.1686       of   2020   in

C.C.No.2152 of 2020 on the file of the I Additional Chief Metropolitan

Magistrate, Visakhapatnam, these two criminal revision cases have

been filed.


2.     The petitioner, who is A-1 in C.C.No.2152 of 2020 on the file of

the I Additional Chief Metropolitan Magistrate, Visakhapatnam has

filed Crl.M.P.No.1685 of 2020 under Section 205 of Criminal

Procedure Code, 1973 (for short "Cr.P.C.") to exempt him from

appearance before the Court below on each adjournment and he may

be permitted to be represented by an Advocate on his behalf in the

Court.    The petitioner also filed Crl.M.P.No.1686 of 2020 under

Section 6 (2) (f) of Passport Act, 1967 to grant 'No Objection

Certificate' for issuing passport to him.


3.     The Court below while dismissing the said applications has

referred to the judgment of the Hon'ble Apex Court in Maneka

Gandhi Vs. Union of India and another1; judgment of High Court of

Chhattisgarh in Abhishek Tiwari Vs. Union of India2 and also the

judgment of the Allahabad High Court in Ravindra Nath Bhargav

Vs. State of U.P.3 and referred to the provisions of Sections 5 and 6

(2) (f) of Passport Act, 1967.       The Court below dismissed the said

applications mainly on the ground that if the petitioner is permitted

to leave the country, his possibility of returning to India is almost
1
  (1978) 1 SCC 248
2
  2019 Supreme Chattisgarh High Court 919 = MANU/CG/1116/2019
3
  2019 (2) ACR 1196
                                    2


impossible.   The Court below felt that the petitioner is not a law

abiding citizen and will not attend before the Court as and when

required for the reason that the mother and sister, who were shown

as A-2 and A-3, though residing in Viskhapatnam within the

jurisdiction of the Court, the prosecution could not serve summons

on them for the last two years.    The Court below further observed

that the endeavour of the Court is to see the possibility of spouses for

reunion by way of conciliation, which is possible only when both

parties are present and accordingly, the Court below did not find any

merits in both the petitions and dismissed the same.


4.    Learned counsel for the petitioner submits that a complaint

was lodged against the petitioner and his family, police after

conducting the investigation filed charge sheet for the offences

punishable under Section 498-A, 506 of IPC and Section 3 & 4 of

Dowry Prohibition Act, 1961. He submits that the petitioner was not

aware of the complaint lodged by the defacto complainant and it is

his specific contention that he has not married the defacto

complainant and he was falsely implicated in the case. He submits

that the petitioner has been working in Silver Sky Technology SDN

BHD, Malaysia and recently, when the petitioner came to know about

registration of complaint, he voluntarily surrendered before the

Court, as such the Court cannot draw any interference against him

that he is not a law abiding citizen and as far as not able to serve

summons on the other accused is concerned, the same cannot be

attributed to the petitioner.


5.    Learned counsel for the petitioner submits that as the

petitioner's contract was renewed, the employer asked him to send

his passport for Visa processing. When the petitioner was about to
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send his passport, the same was damaged due to rain, as such he is

constrained to make an application to the passport authorities for

issuance of a fresh passport, but since a criminal case is pending

against the petitioner, the passport authorities asked him to furnish

No Objection Certificate issued by the Court and the Court below

without considering all these aspects in its proper perspective, has

dismissed the application filed by him. He submits that when it is

the specific case of the petitioner that there is no marriage between

the parties, the offence under Section 498-A of IPC is not attracted.

If the petitioner failed to send his passport and get his contract

renewed, he will sustain irreparable loss.


6.       Learned counsel for the petitioner relied on the notification

issued by the Ministry of External Affairs dated 25.08.1993 under

Section 22 (a) of Passport Act, 1967 exempting citizens against whom

proceedings in respect of an offence alleged to have been committed

by them or pending before criminal Court in India, if they produce

orders from the Courts concerned permitting them to depart from

India from the operations of provisions of Section 6 (2) (f) of Passport

Act, 1967. He submits that as per the circular it is the discretion of

the Court to grant permission to leave India. The petitioner alone is

the earning member of the family and if he loses his job, it is very

difficult for him to maintain family.     He submits that he is a law

abiding citizen, he will comply with any of the conditions imposed by

this Court.


7.       Learned counsel for the petitioner relied on the judgment of the

Allahabad High Court in Madhu Tyagi and others Vs. State of U.P.4

and submits that the passport or travel document of a person who is

4
    MANU/UP/0746/2019
                                        4


facing trial can be refused by the authority concerned during the

pendency of criminal case, but there is no statutory bar for giving no

objection by the Court concerned. He submits that no straight jacket

formula can be laid down regarding issuance of permission or giving

no objection by the Court concerned. It is always the discretion of

the Court concerned and depend upon the facts and circumstances

of each case, act and conduct of the accused as well as nature of

alleged offence committed by him and stage of trial. He submits that

sometimes, on account of enmity or ill-will, a person may be falsely

implicated in cases to settle personal scores, wherein if the Court

fails to exercise discretion, the person / accused will be put to

hardship and injustice.


8.       Learned counsel for the petitioner also relied on the judgment

of the Madras High Court (Madurai Bench) in A.Suresh Kumar Vs.

The Passport Officer, Regional Passport Office5, wherein the

Madras High Court placed reliance on the judgment of the Bombay

High Court in Deepak Dwarkasingh Chhabira Vs. Union of India

and another6, wherein it was held thus:

       "10. In view of the aforesaid notifications by the Central
       Government, it is clear the that the citizens against whom
       criminal cases are pending are made exempt from the operation of
       Section 6(2)(f) provided they produce orders from the concerned
       Court permitting them to travel abroad subject to the terms and
       conditions mentioned in the notifications. In other words, an
       application of passport is not liable to be refused on the ground of
       pendency of criminal case if the applicant obtains permission from
       the concerned Criminal Court for travelling outside India. The
       passport authority, therefore cannot reject the application for
       passport mechanically on the ground of pendency of criminal case
       against the application. It will be the duty of the passport
       authority of bring the relevant notification to apply to concerned
       Criminal Court for permission to the travel abroad. If the
       applicant obtains such permission from the Criminal Court where
       his case of pending, the passport of authority will be duty bound
5
    MANU/TN/1157/2016
6
    MANU/MH/0029/1997 = AIR 1997 Bombay 181
                                       5


     to issue the passport in terms of the order of the Criminal Court
     subject to the conditions of the notification. In the present case
     the passport authority has failed to bring the relevant notification
     to the notice of the applicant inspite of the fact that the
     application was pending before the authority for more than one-
     and-half years. In fact it is doubtful whether the passport
     authority himself was aware of the notification granting exemption
     to the citizens form the operation of Section 6(2)(f). It is matter if
     regret that applications are kept pending by the passport
     authority for such a long time particularly, when it affects the
     fundamental right of the citizen. At no point of time the passport
     authority had informed the petitioner that he was entitled to
     passport subject to orders of the Criminal Court. The passport
     authority has also failed to give information or particulars about
     the pending criminal case. It is an admitted position that till today
     the petitioner is not served with the summons of the pending
     criminal case. In such a situation, it was all the more necessary
     for the passport authority to inform the petitioner of his right to
     apply to the Criminal Court for permission to travel abroad. In my
     opinion, it is necessary to issue specific directions to the passport
     authority in order to ensure that the citizens' application for
     passport are not unnecessarily delayed on account of pending
     criminal cases.

            Accordingly, it is directed that in all cases covered by
     Section 6(2)(f), the passport authority shall forthwith inform the
     applicant about his right to apply to the concerned Criminal Court
     for permission of travel abroad in terms of the notification dated
     25th August, 1993. In case the applicant demands a copy of the
     notification, same shall be supplied by the passport authority
     subject to payment of charges. Needless to mention that it will be
     open for the applicant to approach the Criminal Court, where
     criminal case against him is pending, for permission to travel out
     of India. Even if he has not received summons from the Criminal
     Court, it will be open for the applicant to apply to that Court for a
     limited purpose of issuing the necessary orders for grant and/or
     renewal of passport. Considering the fact that the matter involves
     the fundamental right of the applicant, the concerned Court shall
     decide such application as expeditiously as possible and
     preferably within four weeks from the date of receipt of such
     application, after notice to the prosecution. In case of Criminal
     Court passes an order for issuance of passport, the passport
     authority shall forthwith issue the passport to the applicant
     subject to the terms and conditions mentioned and notification
     but without making any endorsement on the passport about the
     pending criminal case."



9.    Per contra, learned Public Prosecutor would submit that

though the crime pertains to the year 2018, none of the accused can
                                        6


be apprehended, as such there is delay in conducting investigation.

In fact, the family members of the petitioner though available in

Visakhapatnam, they could not serve summons and that itself shows

that the petitioner and other accused on one pretext or other are

trying to delay the proceedings in this case. He submits that if the

petitioner is allowed to leave the country, he may not return and the

Court below has rightly exercised its discretion and dismissed the

application filed by the petitioner.


10.   The petitioner after filing the criminal petition has filed an

application to implead the defacto complainant as respondent, this

Court by order dated 31.12.2020 has ordered notice to proposed

respondent and also permitted the learned counsel for petitioner to

take out personal notice. Learned counsel for the petitioner submits

that he has taken out personal notice and the same was served on

the proposed respondent and he has also filed proof of service. But

none appears on behalf of the defacto complainant.

11. Heard the learned counsel on either side and perused the

record. The Court below has dismissed the application on the ground

that for amicable settlement between the parties, the presence of the

petitioner is necessary and secondly for the reason that the notices

could not be served on the other accused, in spite of the best efforts

made by the prosecution, as such the Court below came to the

conclusion that if the petitioner is allowed to go abroad, the

possibility of returning to India is almost impossible.

12. In this case the crime was registered for the offence under

Section 498-A of IPC in the year 2018. It is the specific case of the

petitioner that after coming to know about the criminal case, he

voluntarily came to India and surrendered before the Court and now

as the petitioner's passport was damaged, he was constrained to file

an application under Section 6 (2) (f) of Passport Act, 1967 seeking to

grant no objection certificate from the Court. What was the reason

for non serving the summons on the other accused is not at all

discussed by the Court below.

13. Section 6 of Passport Act, 1967 reads thus:

6. Refusal of passports, travel documents. etc.--

(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any country under clause (b) or 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 may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;

(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;

(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;

(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.

(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;

(c) that the departure of the applicant from India may, or is likely to, be detrimental to the security 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.

14. As per Section 6 (2) (f) of the Passport Act, 1967, the passport

authority shall refuse to issue passport or travel document for

visiting any foreign country, if criminal proceedings are pending

against the applicant in India. A bare reading of the Passport Act,

1967 reveals that there is no absolute bar for issuance of passport.

As per Section 6 (2) (f) of the Passport Act, 1967 when the passport

authority refuses to grant passport, the Court while exercising its

discretion has to look at the facts and circumstances of each case.

Mere pendency of criminal case cannot be a reason to refuse to grant

passport. In the present case, the petitioner has approached the

Court when his passport was damaged for issuance of no objection.

Admittedly, the petitioner is working in Malaysia and if he has to stay

back in India till the completion of trial, which takes considerable

time, the career of the petitioner will definitely be effected.

Particularly, in this case the petitioner denies the factum of marriage

itself. In case the petitioner is acquitted in the criminal case, his loss

cannot be compensated. In these circumstances, this Court deems it

appropriate to direct the passport authorities to renew the passport

of the petitioner on certain conditions.

15. Accordingly, the criminal revision cases are allowed and the

common order dated 20.10.2020 passed in Crl.M.P.No.1685 of 2020

and Crl.M.P.No.1686 of 2020 in C.C.No.2152 of 2020 on the file of

the I Additional Chief Metropolitan Magistrate, Visakhapatnam is set

aside. The passport authorities shall renew the passport of the

petitioner for a period of nine months from the date of renewal. The

petitioner shall furnish bank guarantee for a sum of Rs.5,00,000/-

(Rupees five lakhs only) before the trial Court. The petitioner shall

appear before the trial Court whenever his presence is required by

the Court and on other occasions, the petitioner can be represented

by the advocate.

As a sequel, all the pending miscellaneous applications are

closed.

__________________________________ JUSTICE LALITHA KANNEGANTI

2nd February, 2021

PVD

THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI

Allowed

CRIMINAL REVISION CASE Nos.475 and 478 of 2020

2nd February, 2021

PVD