Mahesh Kumar Agarwal vs Union Of India And Anr
2024 Latest Caselaw 1823 Cal/2

Calcutta High Court

Mahesh Kumar Agarwal vs Union Of India And Anr on 15 May, 2024

Author: Sabyasachi Bhattacharyya

Bench: Sabyasachi Bhattacharyya

                     In the High Court at Calcutta
                    Constitutional Writ Jurisdiction
                             Original Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            WPO No. 352 of 2024
                          MAHESH KUMAR AGARWAL
                                    VS
                          UNION OF INDIA AND ANR

     For the petitioner              :      Mr. Rajarshi Dutta, Adv.
                                            Mr. Nilay Sengupta, Adv.
                                            Mr. Sujit Banerjee, Adv.

     For the
     Union of India/respondents      :      Mr. Ashoke Kumar Chakraborty,

Ld. A.S.G.I. Mr. Kumar Jyoti Tewari, Adv., Mr.Tirtha Pati Acharyya, Adv.,

Hearing concluded on : 09.05.2024

Judgment on : 15.05.2024

Sabyasachi Bhattacharyya, J:-

1. Heard learned counsel for the parties.

2. The issue which has fallen for consideration is whether the rigours

applicable to issuance of a passport for the first time apply to renewal

of passport after the expiry of the term for which it was initially

granted.

3. The petitioner was convicted and sentenced to maximum

imprisonment of four years under Sections 120B, 420, 471, 411 and

471 of the Indian Penal Code (IPC) on April 25, 2022 by a Delhi court.

An appeal is pending against the same before the High Court at Delhi.

By an order dated September 4, 2023, a Learned Single Judge of the

Delhi High Court granted no objection/permission for renewal of the

petitioner's passport for a period of ten years upon considering that

the order suspending the sentence of the petitioner noted that the

petitioner shall not leave the country without the permission of the

Court.

4. On the other hand, in a different pending criminal proceeding before

the Additional Judicial Commissioner XVI-cum-Special Judge, NIA,

Ranchi, the said court by an order dated July 10, 2023 directed the

passport of the petitioner to be handed over to the petitioner for the

limited purpose of renewal on furnishing the indemnity bond of Rs.

50,000, subject to filing of an undertaking that he will not obtain Visa

to travel outside India after renewal of passport without permission of

the said court and will deposit the passport to the court's office

immediately after renewal.

5. Learned counsel for the petitioner argues that in view of both the

courts having granted permission for renewal, the passport of the

petitioner should be renewed for a period of ten years.

6. It is argued that the provisions of Section 6 of the Passports Act, 1967

(hereinafter referred to as "the 1967 Act") applies only to issuance of

passports and not to renewal. Hence, irrespective of Section 6(2)(f) of

the 1967 Act, the petitioner's passport should be renewed for the

default period of ten years as stipulated under Rule 12 of the Passport

Rules, 1980 (in short, "the 1980 Rules").

7. Controverting such submission, the respondent-authorities argue that

the rigours of issuance of passport also apply to a renewal after the

expiry of the tenure of passport.

8. In support of his submissions, learned counsel for the petitioner has

cited several judgments which are dealt with below.

9. In Ashok Khanna vs. Central Bureau of Investigation, reported at2019

SCC OnLine Del 11080, a learned Single Judge of the Delhi High Court

observed that Section 6 is not applicable to the case of a renewal.

While so holding, the learned Single Judge considered the distinctions

between Form EA(P)-1 for new/re-issue/replacement of lost/damaged

passports, which contains a declaration by the applicant whether any

criminal case is pending and furnishing of No Objection Certificate

from the competent court, and Form EA(P)-2, which applies to renewal

of passport, containing a clause for disclosure of whether any criminal

case is pending but without the requirement of furnishing a No

Objection Certificate from the criminal court.

10. On such premise, the court went on to hold that since there is

separate provision for renewal of passport, Section 6 is not applicable.

The same view was followed by a learned Single Judge of the

Karnataka High Court in Krishna Chiranjeevi Rao Palukuri Venkata vs.

Union of India, Ministry of External Affairs, represented by its Principal

Secretary and others, reported at 2020 SCC OnLine Kar 3437.

11. A contra view, however, was taken by the learned Single Judge of the

Andhra Pradesh High Court in Kadar Valli Shaik v. Union of India,

Rep. By its Secretary, New Delhi and others, reported at 2023 SCC

OnLine AP 406. The said learned Single Judge read section 5 of the

1967 Act along with Rule 5 and the Forms in Schedule-III to observe

that it is evident that renewal of passport is also covered under

Section 5 of the Act and issue as well as renewal of passport shall be

subject to the other provisions of the Act which include Section 6 as

well.

12. In a judgment of this Court dated December 18, 2023 in WPO No.1778

of 2023 [Arabul Islam and ors. Vs. Union of India and ors.], a similar

view was expressed by considering the relevant Sections of the 1967

Act. This Court took into consideration the language of Section 5 and

Section 6 of the 1967 Act and the Notification of the Central

Government providing exemptions under the latter Section to hold

that the rigours of Section 6(2)(f) apply to re-issuance of passports.

13. Although the above judgements are germane in the present context,

two others, also cited by the petitioner are not.

14. In Ganni Bhaskara Rao vs. Union of India and another, reported at

2022 SCC OnLine AP 824, there was a subsisting passport and the

respondent-authorities were not returning the passport on the ground

of adverse police report, which was being decided by the Court. It was

held by the court that the suppression of the information of pendency

of criminal case could not entitle the authorities to withhold the

passport. Thus, the consideration in the said case was somewhat

different from the present.

15. Again, in the judgment of the Supreme Court in Vangal Kasturi

Rangacharyulu vs. Central Bureau of Investigation, reported at 2021

SCC OnLine SC 3549, the Supreme Court in paragraph 9 held that the

conviction of the appellant therein stands still the disposal of the

criminal appeal and the sentence which he had to undergo was for a

period of one year. The passport-Authority, it was held, cannot refuse

the renewal of the passport on the ground of pendency of the criminal

appeal. The court held that Section 6(2)(f) relates to a situation where

the applicant is facing trial in a criminal court and distinguished the

same from the facts of the said case.

16. Thus, in the said case, Section 6(2)(f) did not apply at all as the

appellant therein had already been convicted.

17. Moreover, the Supreme Court did not lay down any general

proposition of law but directed renewal simpliciter in a single

sentence. Hence, the only conclusion which can be drawn therefrom is

that the direction passed therein was not under Article 141 of the

Constitution but generally under Article 142, which power is not

vested with this Court.

18. Thus, the last-cited judgment of the Andhra Pradesh High Court and

that of the Supreme Court are not germane in the present context.

19. In order to consider the proposition laid down by the Delhi and

Karnataka High Courts in Ashok Khanna (supra) and Krishna

Chiranjeevi Rao Palukuri Venkata (supra) respectively, a consideration

of the relevant provisions would be fruitful.

20. Sections 5, 6, 7, 8 and 9 of the 1967 Act are set out below:

"5. Applications for passports, travel documents, etc., and orders thereon--

(1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the

application may be made to the passport authority and shall be accompanied by 2 [Such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents.

Explanation.- In this section, "named foreign country" means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf.

(1A) An application for the issue of-

(i) a passport under this Act for visiting a named foreign country; or

(ii) a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section, may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed. (1-B) Every application under this section shall be in such form and contain such particulars as may be prescribed.

(2) On receipt of an application 3 [under this section], the passport authority, after making such inquiry, if any. as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,-

(a) issue the passport or travel documents with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or

(b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or

(c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement. (3) Where the passport authority makes an order under clause (b) or clause (c) of sub- section (2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy.

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 foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and 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.

7. Duration of travel document A passport or travel document shall, unless revoked earlier, continue in force for such period as may be prescribed and different periods may be prescribed for different classes of passports or travel documents or for different categories of passports or travel documents under each such class:

Provided that a passport or travel document may be issued for a shorter period than the prescribed period-

(a) if the person by whom it is required so desires; or

(b) if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period.

8. Extension of period of passport Where a passport is issued for a shorter period than the prescribed period under section 7, such shorter period shall, unless the passport authority for reasons to be recorded in writing otherwise determines, be extendable for a further period (which together with the shorter period shall not exceed the prescribed period) and provision of this Act shall apply to such extension as they apply to the issue thereof.

9. Conditions and forms of passports and travel documents--

The conditions subject to which, and the form in which, a passport or travel document shall be issued or renewed shall be such as may be prescribed:

Provided that different conditions and different forms may be prescribed for different classes of passports or travel documents or for different categories of passports or travel documents under each such class:

Provided further that a passport or travel document may contain in addition, to the prescribed conditions such other conditions as the passport authority may, with the previous approval of the Central Government, impose in any particular case."

21. A composite reading of the 1967 Act reveals that the term "renewal"

has not been used anywhere except for Section 9, which merely

stipulates that the condition subject to which, and the form in which,

a passport or travel document shall be issued or renewed shall be

such as may be prescribed. However, the said provision is not the

source of power of the authorities to renew the passport.

22. Section 5 only speaks of issuance of a passport and not renewal or

extension.

23. Section 7 provides that a passport, unless revoked earlier, shall

continue in force for such period as may be prescribed, provided that

it may be issued for a shorter period than the prescribed period if the

applicant so desires or if the passport authority, for reasons to be

communicated in writing to the applicant, considers in any case that

the passport should be issued for a shorter period.

24. Section 8 speaks of extension of period of passport, which can be

somewhat equated with the concept of renewal. As per the said

Section, a situation is contemplated where a passport is issued for a

shorter period than that prescribed under Section 7, in which case the

passport authority can, unless for reasons to be recorded in writing it

determines otherwise, extend the passport for a further period which

together with the shorter period shall not exceed the total prescribed

period. Thus, Section 8 governs situations where a short-term

passport is issued, which can be extended only up to the default

period as prescribed. Conspicuously, in the last part of Section 8, it is

stipulated that the provisions of the 1967 Act shall apply to such

extension as they apply to the issue thereof.

25. Thus, the only situation where an extension is contemplated in the

1967 Act is under Section 8 which specifically applies all the rigours

of issuance of passport to extensions as well.

26. The Delhi and the Karnataka High Courts respectively have proceeded

to interpret the provisions of the Act in the light of the Rules framed

thereunder. Section 24 of the Act confers the rule-making power on

the Central Government. Sub-section (2)(c) thereof confers rule-

making power regarding the form and particulars of application for

the issue or renewal of a passport or travel document or for

endorsement on a passport or travel document and where the

application is for the renewal, the time within which it shall be made.

27. Conspicuously, although Rule 12 stipulates the prescribed period

during which a passport shall be in force by default, no particular

period has been stipulated in terms of Section 24(2)(c)within which a

renewal application has to be made.

28. With utmost respect to the erudition of the learned Judges of the

Delhi and the Karnataka High Courts, it is a settled proposition of law

that the power to frame Rules can be conferred by an Act but the

converse is not true. Rules are creatures of the parent Act and as

such, are by their very nature subservient to the parent statute. It

would be an absurd interpretation if it is held that a power not

conferred by the Act is conferred under the Rules, since the Rules are

a delegated piece of legislation and operate within the limited

framework of the rule-making power of the Executive as conferred by

the parent Act itself. Thus, the proposition that although the 1967 Act

itself does not confer any power of renewal, the Rules so vest in the

authorities, is untenable in law.

29. The other absurd proposition which would follow from such an

approach is that the Act itself, although it provides for issuance of a

passport and revocation of the same, does not contemplate any

renewal.

30. It may be noted here that although Form EA(P)-2 deals with

applications for renewal and does not provide for furnishing a copy of

a no objection certificate from the jurisdictional criminal court, such

omission in the Rules cannot be construed to divest the passport

authority of the power to refuse renewal on grounds provided in law.

Although, as per the Form, in the first place no requirement for

furnishing a no objection certificate is provided, the same does not

deter the authorities from insisting on the applicant complying with

the provisions of law and refusing to grant renewal in the event

criminal proceedings are pending against the applicant and the law

debars the authority from granting such renewal.

31. Therefore, we have to turn to the parent Act itself to seek the source of

power of the passport authority to grant renewal.

32. Section 8 confers the power of extension but within the limited

conspectus of a situation where a passport is issued in the first place

for a shorter period than the default period. A clue, however, has been

left in the last part of Section 8 which applies the provisions of the Act

regarding issuance of a passport also to such extensions.

33. Taking the said proposition further, there is no reason why at the time

of renewal of a full-tenure passport also, the rigours associated with

issuance of a passport shall not be applicable.

34. Since Section 8 operates within the limited conspectus of Section 7,

we have to look elsewhere in the Act to discover the source of power of

the authority to renew passport after the entire default period is over.

35. Section 10 confers power on the passport authority, inter alia, to

require the holder of a passport, by notice in writing, to deliver up the

passport to it within such time as may be specified. Under sub-section

(3) of the said Section, the passport authority may impound or cause

to be impounded or revoke a passport or travel document under

certain circumstances. Section 10(3)(e) stipulates, as one such

circumstance, pendency of proceedings in respect of an offence alleged

to have been committed by the holder of the passport before a

criminal court in India.

36. Section 6(2)(f) of the 1967 Act imposes a similar restriction to issuance

of passport under Section 5on the same ground. In the absence of any

other specific provision to renew passports granted for the default

period for 10 years, the source of the power of the authority for

renewal has to be derived from the same source as issuance of

passport, that is, Section 5.

37. As the Rules provide for situations of renewal, there is no other option

but to look to Section 5 itself for such power. It is rather obvious that

the power to issue a passport is not restricted to a single occasion at

the inception but is vested in the authorities to be exercised any

number of times. Thus, the power to renew a passport after the expiry

of ten years can be equated to the power of re-issuance of passport,

which is akin to issuance of a passport, under Section 5 of the 1967

Act itself.

38. Having held so, in terms of Section 6(2), the restrictions stipulated in

the said sub-section for issuance of passport also apply to a re-

issuance/renewal of passport after the expiry of the due term.

39. As per the provisions of the Act and the Rules as discussed above, a

passport, once issued, shall be "in force" for ten years in case of a

regular passport. Thus, immediately after the expiry of the same, it

cannot be said that the passport still subsists.

40. As such, the line of judgments which stipulates that a passport

cannot be withheld without actually revoking it under Section 10 are

not applicable to a passport which has spent its force by expiry of its

tenure. In the latter case, the holder of the passport is no longer in

possession of a valid, subsisting passport and the authorities need not

or cannot impound or revoke such non-existent passport.

41. Seen from another perspective, we cannot infer a void in the statute.

42. Section 5, read with Section 6, restricts the passport authorities from

issuance of passport under certain circumstances, including where a

criminal case is pending against the applicant.

43. Again, during subsistence of the passport, the authorities are clothed

with the power to revoke/impound the passport on a similar ground

under Section 10.

44. Hence, it cannot be that the same restrictive principle does not apply

also to a scenario where after expiry of the tenure of the passport, the

applicant seeks a re-issuance/renewal.

45. Going by such logic, Section 5 is the source of power of the passport

authority to renew a passport after the expiry of its tenure and, as a

corollary thereto, the bar under Section 6(2) applies in case of

renewals as well.

46. Hence, in utmost respect, I cannot but differ from the view taken by

the Delhi and the Karnataka High Courts respectively in Ashok

Khanna (supra) and Krishna Chiranjeevi Rao Palukuri Venkata (supra)

and agree with the view taken by the learned Single Judge of the

Andhra Pradesh High Court in Kadar Valli Shaik's case.

47. Hence, applying the said principle to the facts of the present case,

although the Delhi High Court has granted a no objection for issuance

of passport for ten years, the learned Special Judge, NIA, Ranchi has

not. In fact, even if the petitioner has the permission in the Delhi case,

where he has been convicted, with the rider that he cannot leave the

country without permission of the court, in view of the refusal of the

Ranchi court to grant permission at all to the petitioner to travel

abroad, the bar envisaged in Section 6(2)(f) of the 1967 Act applies in

full force. The learned Special Judge, NIA, Ranchi has merely

permitted the petitioner to have his passport for the limited purpose of

renewal, immediately upon which the same has to be deposited with

the court office. Hence, in the absence of any permission to travel

abroad in the pending criminal case at Ranchi, the petitioner is

debarred under Section 6(2)(f) to have a re-issuance/renewal of his

passport. The permission given by the Ranchi High Court to present

the passport for renewal does not confer any right on the petitioner to

get such a renewal if law otherwise does not so permit.

48. Thus, in view of the above observations, the petitioner's plea to have a

renewal of his passport cannot be granted.

49. Accordingly, WPO No.352 of 2024 is dismissed on contest, however, in

the facts and circumstances of the case without any order as to costs.

50. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )