Bombay High Court
Capt. Amol Vasant Kelkar vs Union Of India And Ors on 8 March, 2021
Bench: S.S. Shinde, Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.234 OF 2020
ALONG WITH
INTERIM APPLICATION (ST.) NO.4183 OF 2021
IN
CRIMINAL WRIT PETITION NO.234 OF 2020
Capt. Amol Vasant Kelkar, ]
Residing at, 403/404, Shree Niketan ]
CHS Ltd., above NKGSB Bank Ltd., ]
HFS Road, Jogeshwari (East), Mumbai ]
- 400 060. ] ... Petitioner
Versus
1. Union of India, ]
Aayankar Bhavan, New Marine ]
Line, Mumbai - 29. ]
2. Regional Passport Officer at ]
Mumbai, having his office at ]
Raheja Tipco Plaaza, Shah ]
Arcadez, Unit - 2/B, Rani Sati ]
Mars, Malad (E), Mumbai - 400 ]
097. ]
3. The State of Maharashtra, ]
(Through Vanrani Police Station ]
at Goregaon (E), Mumbai.) ] ... Respondents
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...
Mrs. Racheeta R. Dhuru with Ms. Amruta Athavale for the
petitioner.
Mr. Shashikant Chaudhari with Mr. V.G. Talreja i/b VKGT &
Associates for Intervenor/Applicant.
Mr. D.P. Singh for the respondent Nos.1 and 2.
Smt. A.S. Pai, A.P.P. for respondent-State.
...
CORAM : S.S. SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 03RD MARCH, 2021
PRONOUNCED ON : 08TH MARCH, 2021.
J U D G M E N T:- [Per: Manish Pitale, J.]
1. Rule. Rule made returnable forthwith. Heard finally with
consent of the learned counsel for the rival parties.
2. By this writ petition, the petitioner has challenged the order
dated 19/11/2019 passed by the Court of Metropolitan
Magistrate, 17th Court, Borivali, Mumbai, whereby an application
moved by the petitioner for renewal of passport was allowed, but
it was recorded that 'No objection' is granted for renewal of
passport of the petitioner for a period of two years.
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3. According to the petitioner, he is aggrieved by the said
order because renewal of his passport only for a period of two
years has adversely affected his prospect of securing a job as a
Commercial Pilot.
4. The petitioner is a Professional Pilot, who was working with
Jet Airways. The petitioner got married to one Aakanshka in the
year 2005 and they have two sons from the wedlock. The
marriage ran into rough weather, as a consequence of which, legal
proceedings were initiated against the petitioner, including a
criminal complaint lodged by the wife of the petitioner against
him and his parents for offences punishable under Sections 498A
and 406 read with 34 of the Indian Penal Code ("the IPC")
bearing FIR No.6 of 2019 dated 09/11/2019 registered at Vanrai
Police Station at Goregaon (W), Mumbai.
5. The petitioner filed Writ Petition No.4781 of 2019 seeking
quashing of the said FIR, which is pending before this court.
6. In the interregnum, the passport of the petitioner expired.
Section 6 of the Passports Act, 1967 ("the said Act") pertains to
refusal of passports, travel documents, etc. and under Section 6(2)
(f) of the said Act, it is provided that the Passport Authority shall
refuse to issue passport on the ground that proceedings in respect
of an offence alleged to have been committed by the applicant are
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pending before a criminal court in India. Since the Government
noted that the aforesaid provision was creating hardship for
citizens, while exercising power under Section 22(a) of the said
Act, the Government of India through Ministry of External
Affairs, issued a Notification dated 25/08/1993 to exempt
citizens from operation of Section 6(2)(f) of the said Act subject
to certain conditions. The said notification reads as under:
"MINISTRY OF EXTERNAL AFFAIRS,
NOTIFICATION
New Delhi, the 25th August, 1993
G.S.R. 570(E)- In exercise of the powers conferred by clause (a) of
Section 22 of the Passports Act, 1967 (15 of 1967) and in suppression
of the notification of the Government of India in the Ministry of
External Affairs No.G.S.R. 298(E), dated 14th April, 1976, the Central
Government, being of the opinion that it is necessary in the public
interest to do so, hereby exempts citizens of India against whom
proceedings in respect of an offence alleged to have been committed
by them are pending before a criminal court in India and who produce
orders from the court concerned permitting them to depart from India,
from the operation of the provisions of Clause (f) of sub-section (2) of
Section 6 of the said Act, subject to the following conditions,
namely :--
(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) if no period either for the issue of the passport or for the travel
abroad is specified in such order, the passport shall be issued for a
period one year;
(iii) if such order gives permission to travel abroad for a period less
than one year, but does not specify the period validity of the passport,
the passport shall be issued for one year;or
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(iv) if such order gives permission to travel abroad for a period
exceeding one year, and does not specify the validity of the passport,
then the passport shall be issued for the period of travel abroad
specified in the order.
(b) any passport issued in terms of (a)(ii) and (a)(iii) above can be
further renewed for one year at a time, provided the applicant has not
traveled abroad for the period sanctioned by the Court; and provided
further that, in the meantime, the order of the court is not cancelled or
modified;
(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) the said citizen shall give an undertaking in writing to the
passport issuing authority that he shall, if required by the court
concerned, appear before it at any time during the continuance in
force of the passport so issued.
[No VI/401/37/39]
L.K.PONAPPA, Jt.Secy. (CPV)"
7. Since the petitioner desired to get his passport renewed, he
moved the aforesaid application for renewal of passport before the
Magistrate. By the impugned order, the Magistrate allowed the
application, but granted 'no objection' for renewal of the passport
only for a period of two years. The petitioner is aggrieved by the
said order because unless his passport is renewed for a period of
10 years, his application for seeking employment as a Commercial
Pilot will not be entertained by the Commercial Airlines. It is the
contention of the petitioner that the Magistrate ought to have
directed renewal of passport as per Rules.
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8. Mrs. Dhuru, learned counsel appearing for the petitioner,
submitted that the Magistrate erred in limiting renewal of the
passport of the petitioner only for a period of two years and this
has resulted in a situation where the petitioner is not able to find
employment as a Commercial Pilot. It is further submitted that
the Magistrate ought to have passed the order for renewal of
passport as per Rules.
9. Learned counsel placed reliance on judgments of this Court
in the case of Roshan Lawrence Menezes v. Union of India &
Ors.1, Jindal D/o. Nishith Dalal v. State of Maharashtra & Anr. 2
as also judgment and order in Narendra K. Ambwani v. Union
of India & Ors.3.
10. Apart from this, learned counsel appearing for the
petitioner also submitted that the offences in the present case
were registered against the petitioner and his parents due to
matrimonial discord between the petitioner and his wife. It was
submitted that the petitioner was required to pay maintenance of
Rs.80,000/- per month to his two children and also to pay
instalments of the loan availed by the petitioner for purchase of
an apartment in which his estranged wife is staying with the
children. It is submitted that when the petitioner is unable to
secure employment due to non-renewal of his passport for 10
1 Order dated 07/08/2020 in Writ Petition (L) No.699 of 2020
2 Order dated 03/02/2021 in Writ Petition No.174 of 2021
3 2014 (4) Bom. C.R. 281
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years, it is hampering his ability to pay the amount towards
maintenance of his children as also the loan instalment in respect
of the said apartment. On this basis, it was submitted that the
impugned order was required to be quashed or modified
appropriately to grant relief to the petitioner.
11. Mr.Singh, learned counsel appearing for respondent Nos.1
and 2, submitted that since the Magistrate has specifically
directed renewal of the passport of the petitioner only for two
years, they are bound to follow the order of the Magistrate.
12. Mr.Chaudhari, appeared in support of the application filed
for intervention on behalf of the wife of the petitioner. At the
outset, we made it clear to the said counsel that the wife of the
petitioner was not entitled to intervene in the present matter
which pertains to the question of renewal of the passport. But,
learned counsel appearing for the applicant submitted that he
desired to bring to the notice of this court certain facts pertaining
to the defaults committed by the petitioner towards payments of
the said amount of maintenance and loan instalments pertaining
to the apartment. On this basis, it was submitted that even
though the applicant could not specifically oppose the prayer
made in the present writ petition, this court may pass appropriate
directions considering the defaults being committed by the
petitioner.
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13. The question for consideration before this court in this
petition is as to whether the prayer of the petitioner for grant of
renewal of his passport for a period of 10 years can be granted.
There can be no doubt about the fact that the petitioner was
required to approach the Magistrate for an appropriate order for
renewal of his passport in view of the aforesaid Notification dated
25/08/1993 issued by the respondent-Union of India read with
Section 6(2)(f) of the said Act. The said Notification exempts
citizens from the rigors of Section 6(2)(f) of the said Act upon
conditions specified in the said Notification. As per the said
Notification, the passport can be issued to a citizen even if there
are criminal proceedings pending against such a citizen, for a
period that may be specified, or where no period is specified, the
passport shall be issued for a period of 1 year. Therefore, learned
counsel appearing for respondent Nos.1 and 2 is justified in
submitting that since the Magistrate in the present case has
specified renewal of passport only for two years. The said
respondents stood bound by the order.
14. In this backdrop, when the submissions advanced on behalf
of respondent Nos.1 and 2 are considered and judgments on
which learned counsel for the petitioner has placed reliance are
perused, it is found that the said cases, which came up for
consideration before this court, the Magistrate had passed orders
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directing that the passport of the applicant be renewed as per the
said Act and the Rules framed thereunder. It was found that
under Rule 12 of the said Rules, the passport could be renewed
for a period of 10 years. This court held in the said judgments
that when the Magistrate passed such orders, the Passport
Authorities could not limit the duration for which the passport
was to be issued.
15. But, in the present case, the impugned order passed by the
Magistrate specifically directs that 'No objection' was being
granted for a period of two years. A perusal of the impugned
order shows that the Magistrate has taken note of the pendency of
the criminal proceedings against the petitioner under Section 406
and 498A read with 34 of the IPC and, thereafter, the Magistrate
has recorded that in his opinion, the prosecution shall not suffer
any hardship if 'no objection' is granted for renewal of the
passport. Thereafter, the application is allowed in the interest of
justice but, such 'no objection' for renewal of passport was granted
only for two years. There is no reason assigned in the impugned
order issued by the Magistrate as to why 'no objection' for renewal
of passport was granted only for two years.
16. We are of the opinion that the Magistrate ought to have
assigned reasons if he was of the opinion that renewal of the
passport of the petitioner had to be granted only for a limited
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period of two years. Since, no such reasons have been assigned,
the said direction for renewal of passport for a limited period is
rendered erroneous. The Magistrate could very well have said
that the passport be renewed as per Rules. By application of law
laid down by this court in the above judgments, it would
necessarily means that the passport of the petitioner would be
renewed for a period of 10 years, subject to the petitioner
satisfying other requirements as per the said Act and Rules framed
thereunder. Therefore, we find that the impugned order passed
by the Magistrate to that extent is not sustainable and it needs to
be modified.
17. But, at the same time, we cannot, ignore the fact that the
petitioner has defaulted on payment of maintenance amount
towards the children and the instalments pertaining to the loan
concerning the apartment in which his estranged wife and
children are residing. It is pointed out on behalf of the petitioner
that since he has been out of employment and he has not been
able to secure employment because his passport is not renewed
for 10 years, he has not been able to pay the aforesaid instalments
for the past few months, although he has paid school fees of the
children.
18. During the hearing of the present petition, learned counsel
appearing for the petitioner as well as the applicant seeking
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intervention submitted that they would take instructions from
their respective clients for making statements before this court as
regards the steps that would be taken by the petitioner in respect
of the said defaults. Upon instructions, learned counsel for the
petitioner submitted that the petitioner will make all efforts to
secure a job as Commercial Pilot upon renewal of his passport and
that he will pay the said instalments for a period of six months
from April, 2021 onwards and that he will also deposit balance
school fees, if any, of the children. Learned counsel appearing for
the applicant seeking intervention submitted that this court ought
to record the said statements and that appropriate conditions may
be imposed even if the relief sought by the petitioner was to be
granted.
19. In view of the above, we are inclined to allow the writ
petition subject to certain conditions.
(i) Accordingly, the writ petition is allowed. The
impugned order dated 19/11/2019 passed by the
Metropolitan Magistrate, is modified to the
extent that clause (2) of the said order is set aside
and it is directed that the passport of the
petitioner shall be renewed for a period of 10
years, subject to the petitioner satisfying other
requirements as per the said Act and the Rules
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framed thereunder.
(ii) It is further directed that the petitioner shall pay
instalments pertaining to the said apartment for a
period of six months from April, 2021 onwards
and that he shall pay the balance school fees, if
any, of the children.
20. Rule is made absolute. The writ petition is disposed of
accordingly.
21. In view of the disposal of the writ petition, Interim
Application (St.) No.4183 of 2021 stands disposed of.
(MANISH PITALE, J.) (S.S. SHINDE, J.)
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