Shri Nand Singh vs The Secretary, Uoi And Ors.
2002 Latest Caselaw 430 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This writ petition under Articles 226 of the Constitution of India is filed for issue of direction to the respondents to release passport No. G-222571 to the petitioner after its renewal.

2. Briefly the facts are that the petitioner was granted a passport bearing No. G-222571 in October, 1989 by respondent No. 3, the Regional Passport Office. New Delhi which was valid up to 04.10.1994. Subsequently, it was renewed or validity up to 04.10.19999. In the meantime the petitioner had been to different foreign countries such as UK, USA, Canada, Singapore, Thailand and Malaysia on that passport. On 07.12.1999 the petitioner submitted the passport for further renewal. He deposited the requisite renewal fee of Rs. 600/- with respondent No. 3 against receipt. The petitioner was asked to collect the passport after 15-20 days. The petitioner went to the office of respondent No. 3 on 28.01.2000 for this purpose. He was told that the passport had been sent for renewal to respondent No. 2, the Chief Passport Officer and was asked to come again in the first week of March, 2000. On 06.3.2000 he was asked to come in May, 2000 for collecting the passport. On 12.5.2000, however, respondent No. 3 informed that his passport had been withheld by respondent No. 2 because a criminal case was pending against him in a court at Nahan. Himachal Pradesh. On 14.7.2000 the petitioner met the concerned officer in the office of the Regional Passport Office, New Delhi and told him that no court had passed order detaining his passport; during the past over 11 years he had been earning his livelihood by going to the foreign countries and signing bhejans and kirtans and he had never misused the passport; he was on bail in the said criminal case in which he was falsely implicated and in case he jumped the bail, the court would take legal action against him and for this reason the Passport Office had not right to detain his passport and lastly; he would not leave the country without the prior permission of the court where the criminal case was pending. But the passport was not issued. The said order is challenged in this writ petition on the ground that it is illegal, arbitrary and unfair and has infringed his fundamental rights guaranteed by the Constitution.

3. The Regional Passport Officer filed his own affidavit refuting the claim of the petitioner that the action of withholding of the passport was illegal or not warranted by the provisions of Indian Passport Act. It was stated that the petitioner had not approached the respondent Regional Passport Office with clean hands. At page 3 para 16(ii) of the passport renewal application the petitioner stated that no criminal proceedings were pending against him. On verification by the police, this assertion was found false. The criminal case in FIR No. 2 dated 2.4.1998 under Section 363/376/366 IPC of Police Station Shillai, Himachal Pradesh was pending for trial against him. The petitioner had contravened the provisions of Sections 12(b), 5 and 7 of the Indian Passport Act and the respondent, Regional Passport Officer had ample power to refuse to issue the passport or travel document in such cases. A show cause notice was issued to the petitioner and instead of submitting his explanation, the petitioner rushed to the filing of the petition bearing CMM No. 11/2000 before Himachal Pradesh High Court. On 04.7.2000 the counsel for petitioner did not press that petition saying that the petitioner would avail of other lawful remedy available to him. He requested for dismissing the petitioner as not pressed with liberty to the petitioner to approach the appropriate authority as per remedy available to him law. Instead of acting on this submission, the petitioner had filed the instant writ petition. The respondent has genuine apprehension that the petitioner, if granted passport, was not likely to return to the country and face the trial. Though it was not denied that the passport application was submitted on 7.12.1999 and a fee of Rs. 600/- was deposited by the petitioner, but it was denied that the petitioner was asked to come after 15-20 days for collection of the passport. The petitioner enclosed an undated letter issued by one Mr. Harjinder Singh Atwal, General Secretary, Gurdwara Guru Nanak Dev Ji Wakefield Road. Bradford in support for entry clearance to the petitioner to go to the United Kingdom for a period of six months. The said period is already over. Thee is no record to support the allegation of the petitioner that he went to the office of the respondent on 06.3.2000. But the passport of the petitioner was not ready as in the meantime respondent No. 3 had received a report from the DCP, Special Branch dated 30.12.1999 disclosing the involvement of the petitioner in a criminal case. On the basis of this information a show cause notice was issued to the petitioner on 17.1.2000 asking him to show cause as to why the passport should not be refused to him under Section 5(2)(c) read with Section 6(2)(f) of the Passport Act as he had not disclosed about the above mentioned criminal case pending against him. The petitioner was served with the notice but he did not file any reply within 10 days of its receipt. The proceedings, therefore, have become final and binding on the petitioner. The writ petition filed by the petitioner bearing CMM No. 11/2000 before Himachal Pradesh High Court was dismissed on 04.7.2000. Section 10(3)(f) of the Passport Act empowers the passport authority to impound or cause to be impounded or revoke a passport or travel document if any of the conditions of the passport or travel documents have been contravened. The petitioner was required to take clearance from the court where he was standing trial in a criminal case that during the pendency of the case the passport could be issued to him. The petitioner could also apply for a passport after he was acquitted in the criminal case. It was prayed that this petition should be dismissed.

4. During the curse of the arguments, counsel for petitioner had no answer to the imputation of respondent that the provisions of Passport Act were contravened by the petitioner by not disclosing in the application for renewal/new passport that he was standing trial in a criminal case before a court in Himachal Pradesh. It was a material information which the petitioner was specifically required to state in the column provided in the passport application. He suppressed information about the criminal case in which he was accused and wrote that no criminal case was pending against him. It was a false information. However, his explanation is that the petitioner is a blind man and cannot not himself write or read, therefore, the passport application was got filled in by a man sitting outside the passport office and that the information given in column 16 of page 3 of the application was not written by the scribe on specific instructions of the petitioner but it was written by him of his own. He submitted that the petitioner was on bail and the court or the police had not seized his passport pending criminal case against him.

5. Lastly it is argued that the petitioner is a blind and illiterate man. He is earning his livelihood by signing bhajans and kirtans on being invited to different places and that he goes to other countries as well for this purpose and that non-issuance of the passport has deprived him of the very source of his earning and livelihood and has impinged upon his right of carrying on his profession and vocation. He has assured that in case the passport is issued, the petitioner will not leave the country before the trial in the criminal case was over and he was acquitted.

6. Conversely the counsel for respondents has vehemently opposed the grant of passport to the petitioner on the ground that respondent had genuine apprehension that the petitioner would leave the country and would not come back to face trial. He has referred to provision of Sections 12, 5 and 6 of the Passport Act and has argued that the petitioner has intentionally contravened the statutory provisions. He concealed material information in the passport application, therefore, he was guilty of offence and the passport authorities were within their power to refuse to issue the passport. He also referred to the criminal writ petition filed by the petitioner before Himachal Pradesh which was not pressed by his counsel on the ground that the petitioner would resort to other legal remedy and leave was granted to him for it. It is submitted that when the Himachal Pradesh High Court was about to dismiss the writ petition, the petitioner withdrew it and instead of submitting reply to the show cause notice issued by the respondent, filed the present writ petition in order to take another chance. However, he stated that if the petitioner produced a no objection certificate issued by the court where he was standing trial in the criminal case, the passport could still be issued to him. The Regional Passport Officer in the counter affidavit has also stated that it could be issued to him if the criminal case was over and he was acquitted and the petitioner approached him for issue of a passport with the copy of the judgment etc.

7. It has not been disputed that the petitioner gave wrong information in para 16 of the passport application and falsely stated that he was not involved in any criminal case pending against him. It was a material misstatement of fact which the petitioner was required to disclose in the passport application and which the petitioner could not have forgotten at the time of filling in the application form. It cannot be believed that para 16 of the application was not filled in on his instructions or that it was filled in by the persons, who wrote the application for him, of his own. His contention that he was a blind man and was dependent upon somebody else who filled in the application form for him is nothing but a ruse because the person who actually filled in the application form could not have given the necessary information required to be given in different paragraphs of the application of his own. The petitioner was facing trial in a serious criminal case and he deliberately omitted to give this information and suppressed this information in the passport application for obvious reasons.

8. Furnishing false information or suppressing any material information knowingly in the application form with a view to obtain passport or travel document was na offence under Section 12(1) of the Passport Act for which the punishment for a term which may extend to two years or with fine which may extend to five thousand rupees or with both is provided. Section 5 of the Passport Act requires the passport authority to issue a passport after making inquiry. It empowered the passport authority to refuse to issue the passport or travel document. Section 6(2) of the Passport Act further empowered the passport authority to refuse and issue a passport or travel document for visiting any foreign country in case the proceeding in respect of an offence alleged to have been committed by the petitioner were pending before a criminal court in India. Section 10 of the Act on the other hand empowered the passport authority to impound or cause to be impounded or revoke a passport or travel document if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of he passport or proceedings in respect of an offence alleged to have been committed by the holder of the passport are pending before a criminal court or any of the conditions of the passport or travel documents have been contravened. It will be incongruous to hold that the passport authority even after knowing that the passport if issued to the applicant would contravene the provisions of the Act or breach of any rules framed there under or would commit an offence under the Act was still required to issue a passport and then take action of impounding or revocation of the passport in exercise of the powers vested in it. The passport authority in such a situation was within its power to refuse to issue the passport.

9. Counsel for the petitioner, therefore, has not able to find fault with the order of the Regional Passport office in refusing the passport to the petitioner on his suppressing the material information about the criminal case which he was facing before a court in Himachal Pradesh.

10. Furthermore, the petitioner had challenged the order of the passport authority refusing to issue the passport to him first before the Himachal High Court in CMM No. 11/00 which was dismissed as not pressed on the request of his counsel with leave to approach the appropriate authority as per remedy available to him in law. The contention of the counsel for respondent that this writ petition was not pressed when the court was about to dismiss the petition has not been denied on behalf of the petitioner during the argument. The petitioner apprehending that his writ petition would be dismissed sought leave of the court to approach the appropriate authority and seek remedy available in law. Instead of approaching the concerned authority, the petitioner has filed this writ petition before this court in order to take another chance of getting a favorable order. The petitioner is invoking extraordinary discretionary jurisdiction vested by Article 226 of the Constitution of India to which in the facts and circumstances of the case, he does not seem to deserve.

11. But the petitioner is admittedly a blind man and he is earning his livelihood by signing bhajans and kirtans at different places abroad. It is submitted that it is the only source of his income. Counsel for respondents has also stated that in case the petitioner obtains a no objection from the court where he is standing trial for the criminal offence committed by him, the application of he petitioner for issue of a passport could still be considered or if he is acquitted by the said court, the petitioner may approach the respondent for issue of a passport with the copy of the judgment of the court etc.

12. Keeping these facts in view, particularly that the petitioner is a blind and a handicapped man earning his livelihood by signing bhajans in and outside the country, he is allowed to approach the respondent, Regional Passport Office or the Chief Passport Officer with an order of the court where he is standing trial for the criminal offence that a passport may be issued to him. IN case he so approaches, the respondent will re-consider the application of the petitioner and issue the passport, if otherwise, it is in order. If certain other formalities are required to be completed, the passport authority will be free to get them completed including a fresh inquiry into his application.

13. This order is being passed purely on compassionate ground on the peculiar facts of this case and it will not be treated as a precedent in any other case.

14. With these observations the petition stand disposed of