Delhi High Court

Ashok Khanna vs Central Bureau Of Investigation on 7 November, 2019

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 07.11.2019

+       CRL.A. 686/2018
        ASHOK KHANNA                                        ..... Appellant
                                Through   Mr.Shivesh P. Singh, Adv.

                                versus

        CENTRAL BUREAU OF INVESTIGATION         ..... Respondent
                    Through   Mr.Mridul Jain, SPP for CBI.

        CORAM:
        HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                J U D G M E N T (ORAL)

Crl.M.A. 4784/2019 in Crl.A.686/2018

1. Vide the present application, the applicant/appellant seeks directions

to Regional Passport Authorities, Delhi for renewal of the passport, subject

to compliance of all other rules.

2. The facts of the application are that the applicant is a retired officer

from Syndicate Bank, who during the normal course of his duties was part

of the disbursal of the credit facilities to M/s Surhit Services Pvt. Ltd. The

State Bank of India also granted credit facilities to the said Borrower. After

the applicant retired from Syndicate Bank, the said credit facilities were

renewed by Syndicate Bank and enhanced in consortium with State Bank of

India. However, later the credit facility was classified as NPA due to non-

service of the loan installments/interest. During recovery process, the Bank

filed a complaint with Central Bureau of Investigation (hereinafter referred

to as "CBI") as the same was mandatory. The applicant, amongst other Bank

officials, were charged by the CBI after conducting a routine enquiry. The

Ld. ASJ, Special Judge CBI, convicted the applicant under Section 13 (1)

(d) of the Prevention of Corruption Act, 1988 and handed down sentence of

two and a half years and fine of Rs.20,000/-.

3. Learned counsel appearing on behalf of the petitioner submits that the

applicant holds a valid Indian Passport bearing No. H4661781, which is due

to expire on 01.06.2019. The applicant frequently travels to meet his

daughter, who has been residing in USA for the last 13 years. The applicant

holds a valid VISA to USA for 10 years which was obtained for visiting his

daughter from time to time. The applicant planned to visit his daughter

during the last week of February, 2018 and the passport was due to expire on

01.06.2019. Accordingly, the applicant approached the Regional Passport

office for its renewal, as he would not be permitted to travel by USA

authorities, if the passport expires within six months. For seeking renewal,

the applicant, while following the procedure so laid, sought an appointment

for verification of his documents on 05.02.2019, however, the applicant was

advised by the official that his application will not be entertained unless

specific permission is obtained from this Court.

4. It is further submitted that the applicant also visited his daughter at

USA on 21.09.2018 and returned back to India on 14.10.2019. The said visit

was after the conviction was awarded to the applicant by the Ld. ASJ Spl.

Judge, CBI. The applicant is a permanent resident of India and has a

respectable family background. He is a law abiding citizen and has no other

case/proceedings, of any nature, pending before any other Court/Forum

/Tribunal.

5. Learned counsel further submits that vide order dated 03.07.2018, this

Court suspended the sentence in Crl.M.(Bail) 1024/2018 during the

pendency of the appeal subject to his furnishing a personal bond in the sum

of Rs.50,000/- with one surety of the like amount to the satisfaction of the

Trial Court. Thus, there is no pre-condition imposed by the court not to

travel without permission of the court.

6. Learned counsel appearing on behalf of the respondent has opposed

the present application by stating that as per section 6 of the Passport Act,

1967, if conviction is more than 2 years, then for renewal of the passport, a

permission is required from the court concerned.

7. As per section 6 of the Passport Act, 1967, 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 6 of the said Act, on any one or more

of the grounds mentioned in section 6. For convenience, section 6 is

reproduced as under:

"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."

8. Learned counsel submits that as per sub-clause (e) of clause (2)

of section 6, 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.

9. As per sub-clause (f) of clause (2) of section 6, proceedings in

respect of an offence alleged to have been committed by the applicant

are pending before a criminal court in India. Admittedly, the applicant

has been convicted and sentenced to undergo RI for 2 ½ years with fine

of ₹20,000/- and in default of payment of fine, SI for 3 months. Thus,

the applicant is not entitled for renewal of his passport.

10. To strengthen his argument on the afore-stated issue, he has

relied upon the case of Ashok Kumar Sharma vs. The Regional

Passport Officer & Ors.: (2019) 256 DLT 437 and submits that in the

aforesaid case, the request of the petitioner therein was for re-issuance

of the passport and the same prayer was rejected by this court by

recording as under:

"24. It is also relevant to observe that in terms of Section 6(2)(e) of the Act, a passport can be denied to a citizen if he is convicted of an offence at any time during the period of five years preceding the date of application for a passport. In the present case, the petitioner was convicted of an offence on 12.09.2014 and, thus, any application made during the period of five years from that date - that is, till 11.09.2019 - can be rejected in terms of Section 6(2)(e) of the Passports Act. The petitioner would be at liberty to make an application for a passport after the said date under the provisions of Section 6(2)(e) of the Passports Act. Needless to state that if such application is made, the same cannot be denied on the ground as stated under Section 6(2)(e) of the Passports Act."

11. He submits that in the said case, a new passport has to be issued,

therefore, in the present case also, passport will be re-issued which is

not permissible as per section 6 of the Passport Act mentioned above

and in view of the judgment passed by this court in Ashok Kumar

Sharma (Supra).

12. He further submits that for new passport/re-issue/replacement of

lost/damage passport, application for the same which is part-I of

Schedule III of the Passport Rules, 1980, therefore, where there is

issuance of fresh passport or renewal or replacement of lost or damaged

passport, section 6 of the Act comes into play.

13. As per section 6 of the Act, the passport authority shall refuse to

issue a passport or travel document and to make an endorsement for

visiting any country under clause (b) or clause (c) of sub-section (2) of

section 6 on any one or more of the grounds mentioned therein. In the

said section, the only provision is to refusal to issue a passport or an

endorsement for visiting any country. In the said provision, nowhere it

is mentioned that even on renewal of the passport, the authority can

refuse to renew the passport.

14. In the case of Ashok Kumar Sharma (Supra), the case before

this court was for re-issuance of the passport wherein case in hand is

for renewal of the passport.

15. As per Chapter I Schedule III of the Passport Rules, 1980,

passport application Form-I EA(P)-2 is for miscellaneous services of

Indian passport for (use in India) (A) Renewal (B) Additional Visa

Sheet, (C) Additional Booklet, (D) Change of Address, (E) PCC, (F)

Additional Endorsement, (G) Chief Inclusion/deletion) (H) Any other

service (specify), therefore, the case of the petitioner does not come

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

passport.

16. The case of the petitioner is for renewal of the passport. Neither

he is asking for a new passport nor seeking re-issue or replacement of

lost or damaged passport, therefore, the said applicant is not applicable

in the case of the petitioner.

17. However, the case of the petitioner falls under application Form

EA(P)-2 and according to this application, I note in Form EA(P)-1,

passport application form (1) serial no.17 (a), (b) & (c) are as under:

"17(a) Have you at any time during the period of five years immediately preceding the date of this application been convicted by a court in India for any criminal offence and sentenced to imprisonment for

two years or more? If so, give name of the court, case number and relevant sections of Law. (Attach copy of judgment) ................................................................................

(b) Are any criminal proceedings pending against you before a court in India? If so, give name of court, case number and relevant sections of Law. ..............................................................................

(c) If answer at (b) is (Y)es, please furnish No Objection Certificate from competent court for grant of Passport.

...................................................................................

(d) Have you been ever refused/denied passport? If yes, give details:

......................................................................................

(e) Has your passport ever been impounded/revoked? If yes, give details:

..............................................................................

(f) Have you ever applied/granted political asylum by any foreign country? If yes, give details: ............................................................................."

18. Whereas in Form EA(P)-2, serial number 5 is application which

is reproduced as under:

"5. Are any criminal proceedings pending against applicant in criminal court in India or any other disqualifications under section 10(3)."

19. Thus, in EA(P)-2, there is no such condition to take certificate

from the court. Thus, the respondent has misread the provisions and

contents of the two applications mentioned above.

20. Moreover, Rule 5 is applicable for renewal of passport which is

as under:

"5. Form of applications.-[(1)] An application for the issue of a passport or travel document or for the renewal thereof or for any miscellaneous service shall be made in the appropriate Form set out therefore in Part I of Schedule III and in accordance with the procedure and instructions set out in such form:

[Provided that every application for any of the aforesaid purposes shall be made only in the form printed and supplied by-

(a) the Central Government; or

(b) Any other person whom the Central Government may notification to the condition that such complies that Government behalf:

Provided further that] in the course of any inquiry under sub-section (2) of section 5, a passport authority may require an applicant to furnish such additional information, documents or certificates, as may be considered necessary by such authority for the proper disposal of the application.

4[(2) The price of the new application forms referred to in sub-rule (1) shall be as specified in column 3 or 4, as

the case may be, of Schedule III A for that particular category:

[***]

[(3) The Passport Authority may authorise any person or authority to collect passport applications on its behalf for issue of a passport or travel document or for the renewal thereof or for any miscellaneous service on payment of a service charge specified by the Central Government under sub-rule (2) of rule 8 in addition to the fee payable under sub-rule (1) of rule 8 and the service charge shall be paid by the applicant to such person or authority.]

[***]"

21. In view of above provisions, there is a separate provision for

renewal of the passport, therefore, section 6 is not applicable in the

present case.

22. Though Passport Authority is not made party in the present

appeal, I exercise powers under Article 226 of the Constitution of

India, accordingly, the said authority is directed to renew the passport

of the petitioner within 15 days from the receipt of this order.

23. Copy of this order be also sent to the Regional Passport Office,

Delhi for compliance.

24. Chief Passport Officer, Delhi who shall transmit this order to all

the Regional Passport Offices throughout India for compliance in

pending and future cases.