Andhra Pradesh High Court - Amravati
Dangeti Veera Venkata Satya Prasad vs The Union Of India on 29 October, 2024
APHC010164212024 Bench
IN THE HIGH COURT OF ANDHRA PRADESH
Sr.No.:-
AT AMARAVATI SL-1
[3483]
WRIT APPEAL NO: 383 of 2024
Dangeti Veera Venkata Satya Prasad ...Appellant
Vs.
The Union Of India and Others ...Respondent(s)
**********
Advocate for Appellant: Mr. P R K Amerandra Kumar
Advocate(s) for Respondent(s): Mr. Y V Anil Kumar (Central
Government Counsel), Smt. S.
Pranathi - Ld. Special GP appeared
vice GP for Home.
CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
SRI JUSTICE RAVI CHEEMALAPATI
DATE : 29th October, 2024.
PER DHIRAJ SINGH THAKUR, CJ :
The present writ appeal under Clause 15 of the Letters Patent has
been preferred against the judgment and order dated 16.02.2024, passed in
Writ Petition No.4237 of 2024.
Briefly stated the material facts are as under:
2. The petitioner filed an application before the Regional Passport Officer,
Visakhapatnam for issuance of a passport in his favour.
The application was received, but the petitioner was informed that the
passport cannot be issued on account of the fact that there was a criminal
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case pending before the Special Mobile Judicial First Class Magistrate,
Kakinada under Sections 420, 406, 471, 120B, read with Section 34 of IPC
and that a charge sheet had been filed before the said Court. It was in those
circumstances that the petitioner filed the petition before the learned single
Judge challenging the inaction of respondent No.2 in issuing a passport in his
favour.
3. The contention of the petitioner before the learned single Judge was
that mere pendency of a criminal case was not a bar to the issuance of a
passport and that denial of the same amounts to violation of the petitioner‟s
right guaranteed under Article 21 of the Constitution of India.
4. The Writ Petition came to be disposed of at the admission stage by the
learned single Judge, with liberty to approach the Court of Special Mobile
Judicial First Class Magistrate, Kakinada, to seek appropriate order in terms
of the legal position, settled by a single Bench of this Court, in the case of
Khader Vali Shaik vs. Union of India1. Reference was also made to the
case of Parchuri Ashok Babu vs. Union of India2.
5. It may be worthwhile to briefly refer to the two judgments. In the case of
Khader Vali Shaik(supra), decided on 07.03.2023, a single Bench of this
Court held:
"(a) The prayer of writ petitioners seeking direction to the respondent
passport authorities to renew the passport without insisting on compliance
1
2023 SCC OnLine AP 406
2
2022 SCC OnLine AP 2188 / W.P.No.30373 of 2022
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with the notification dated 25.08.1993, notwithstanding the pendency of the
criminal case in the Court concerned for trial, is rejected.
(b) A direction is issued to the respondents No.1 to 3 to consider the
cases of the petitioners covered under clause (f) of Section 6 (2) of the
Passports Act, for renewal of the passport, on production of the order from
the concerned Court where the criminal case is pending for trial.
(c) On production of an order from the concerned Court, as aforesaid,
the application for renewal shall not be rejected on the ground of mere
pendency of the criminal case in Court, but subject to compliance of other
requirements under notification dated 25.08.1993."
6. In the judgment rendered in Khader Vali Shaik(supra), three writ
petitions came to be disposed of by way of a common order, while the Court
in regard to one of the petitioners recorded "after completion of the
investigation, the police filed charge sheet, including against the petitioner,
upon which, the Court took cognizance of the offences on 20.06.2019 in
C.C.No.418/2019 which case is pending before the Court of Additional Junior
Civil Judge at Badvel....". In the other case it was recorded that the cases
were registered and were pending before the Courts.
7. In the case of Parchuri Ashok Babu(supra), decided on 28.09.2022,
a single Bench of this Court held:
"9. A learned Single Judge of the High Court at Madras dated 04.02.2021 in
W.P.No.20058 of 2020 held that mere pendency of a First Information Report
cannot be the legal basis for denial of issuance of a regular passport to the
petitioner and that it is only after cognizance is taken by an appropriate Court that
it can be held that criminal proceedings have commenced and issuance or
renewal of the passport would be depend on no objection being given by the
concerned Court.
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10. The Central Government has also issued G.S.R.No.570(E), dated
25.08.1993 stipulating that a no objection order would be required from a Court
only if it falls within the ambit of Section 6(2)(f).
11. In view of the fact that Section 6(2)(f) would arise only when there is a
pending proceeding before the Criminal Court after cognizance is taken, it would
have to be held that as of now there is no pending criminal proceeding before the
Court."
8. At this stage, it may be useful to refer to some of the provisions of the
Passports Act, 1967 and the Rules framed thereunder:
Section 5(1) envisages the making of an application for issuance of a
passport under the Act, whereas Section 5(2)(c) interalia envisages the
power of the passport authority to refuse the issuance of a passport or travel
document or, as the case may be, for reasons to be recorded in writing.
Section 6(2)(f) of the Act envisages the power of the passport authority
to refuse issuance of a passport or a travel document for visiting any foreign
country on the ground that proceedings in respect of an offence alleged to
have been committed by the applicant are pending before a criminal Court in
India.
Section 22 of the Act, however, vests the Central Government with the
power to exempt any person or class of persons from the operation of all or
any of the provisions of this Act or the Rules made thereunder.
In exercise of the powers conferred under Section 24 of the Act, the
Central Government has framed the Rules viz., the Passports Rules, 1980.
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In exercise of the powers vested under Section 22 of the Act, the
Central Government issued a notification bearing No.G.S.R.570(E), dated
25.08.1993, exempting citizens of India against whom proceedings in respect
of an offence is alleged to have been committed by them are pending before
a criminal Court in India. The notification reads as under:
"(a) the passport to be issued to every such citizen shall be issued-
(i) for the period specified in order of the court referred to above, if
the court specifies a period for which the passport has to be
issued; or
(ii) .........
(c) any passport issued in terms of (a)(i) above can be further renewed only
on the basis of a fresh court order specifying a further period of validity of the
passport or specifying a period for travel abroad;
(d) ......"
9. On a reading of the aforementioned provisions, it becomes clear that
the passport authority does possess the power to refuse issuance of a
passport or a travel document for visiting any foreign country, on the ground
that "proceedings in respect of an offence alleged to have been committed by
the applicant are pending before a criminal Court in India", yet, in terms of the
notification dated 25.08.1993, bearing No.G.S.R.570(E), issued in terms of
the powers conferred under Section 22 of the Act, an applicant can approach
the Court in which the applicant is facing trial for appropriate orders.
10. With a view to verify the status of the case filed against the appellant in
the Court of Special Mobile Judicial First Class Magistrate, Kakinada, we
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asked the learned Special Government Pleader appearing vice Government
Pleader for Home to take necessary instructions in that regard, who after
verifying the status of the case informed this Court that although the charge
sheet had been filed, upon investigation of the case registered under F.I.R.
No.55/2013, before Sarpavaram Police Station, the trial Court had not yet
taken cognizance of the same.
11. In the light of the statement having been made by the learned Special
Government Pleader that no cognizance had yet been taken by the trial Court
on the charge sheet filed against the petitioner and other accused, what falls
for consideration is whether the mere filing of a charge sheet in a Court would
amount to "proceedings pending before a criminal Court" in terms of Section
6(2)(f) of the Passports Act, 1967, so as to justify the refusal of the issuance
of the passport in favour of the applicant/appellant herein.
12. It can be seen that the Passports Act, 1967, does not define
proceedings as mentioned in Section 6(2)(f) of the Act.
On the other hand, the Code of Criminal Procedure, 1973 defines
"judicial proceeding" as under:
"2. (i) "judicial proceeding" includes any proceeding in the course of which
evidence is or may be legally taken on oath;"
In the instant case, the definition of judicial proceeding in the Code of
Criminal Procedure, however, in our opinion would be of little avail to answer
the question which falls for our consideration.
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On the other hand, it may be apt to refer to Chapters XIV and XVI of
the Code of Criminal Procedure, 1973.
Chapter XIV of the Code deals with "Conditions Requisite for
Initiation of Proceedings". Section 190 of the Code falling under Chapter
XIV deals with Cognizance of offences by Magistrates and envisages as
under:
"190. Cognizance of offences by Magistrates.--(1) Subject to the provisions of
this Chapter, any Magistrate of the first class, and any Magistrate of the second
class specially empowered in this behalf under sub-section (2), may take
cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon
his own knowledge, that such offence has been committed.
(2) ..."
Chapter XVI, on the other hand, deals with "Commencement of
Proceedings before Magistrate". Section 204 falling under Chapter XVI
provides thus:
"204. Issue of process - (1) If in the opinion of a Magistrate taking cognizance of
an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the
accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for
causing the accused to be brought or to appear at a certain time before such
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Magistrate or (if he has no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) ...
(3) ...
(4) ...
(5) ..."
13. In Chief Enforcement Officer vs. Videocon International ltd. and
others3, the Apex Court held that „the expression "cognizance" had not been
defined in the Code, but merely meant, "becoming aware of" and when used
with reference to a Court or a Judge, it connotes "to take notice of judicially".
It indicates when a Court or a Magistrate takes judicial notice of an offence
with a view to initiating proceedings in respect of such offence said to have
been committed by someone‟.
14. The Apex Court further held that "initiation of proceedings" dealt with
under Chapter XIV were different from "commencement of proceedings"
covered by Chapter XVI and that for commencement of proceedings, there
must be initiation of proceedings. For facility of reference paragraph 24 of the
said judgment is reproduced hereunder:
"24. From the above scheme of the Code, in our judgment, it is clear that
"Initiation of Proceedings", dealt with in Chapter XIV, is different from "Commencement
of Proceedings" covered by Chapter XVI. For commencement of proceedings, there
must be initiation of proceedings. In other words, initiation of proceedings must precede
commencement of proceedings. Without initiation of proceedings under Chapter XIV,
there cannot be commencement of proceedings before a Magistrate under Chapter
3
(2008) 2 SCC 492
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XVI. The High Court, in our considered view, was not right in equating initiation of
proceedings under Chapter XIV with commencement of proceedings under Chapter
XVI."
15. The ratio of the aforementioned judgment was followed subsequently in
Bhushan Kumar and another vs. State (NCT of Delhi) and another4.
16. Considering the facts of the present case on the touchstone of the
principles laid down in the aforementioned judgments, it is clear that the
Court of Special Mobile Judicial First Class Magistrate, Kakinada, having not
taken judicial notice of the charge sheet filed before it, cannot be said to have
taken cognizance much less can the Court be said to have initiated
proceedings in terms of Chapter XVI of the Code of Criminal Procedure.
17. Therefore, we would have no hesitation in holding that proceedings
would be said to have been pending only if cognizance had been taken by
the Court and steps had been taken by the Court under Chapter XVI of the
Code of Criminal Procedure. Since, there was no cognizance taken, there
would be no question of „proceedings pending before a criminal Court,‟ which
would attract the provisions of Section 6(2)(f) of the Passports Act, 1967.
18. In our opinion, the learned single Judge committed an error in law, in
directing the appellant herein to approach the Court below where the charge
sheet was filed, on an erroneous assumption that the provisions of the
notification, dated 25.08.1993, bearing No.G.S.R.570(E), would be attracted
inasmuch as the charge sheet had been filed in the Court below, without
4
(2012) 5 SCC 424
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going into the question as to whether the Court below had actually taken
cognizance on the charge sheet so filed.
Reliance placed by the learned single Judge on the judgment rendered
in the case of Khader Vali Shaik(supra) was also inapt. Furthermore, the
judgment referred to in the case of Parchuri Ashok Babu (supra) in fact,
supported and buttressed the case of the petitioner that Section 6(2)(f) would
apply only when there was a proceeding pending before the criminal Court.
19. Be that as it may, we allow the present writ appeal, set aside the
judgment and order impugned dated 16.02.2024 and direct the respondents
to issue the passport in favour of the appellant without any further delay.
There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ.
RAVI CHEEMALAPATI, J.
SSN
