Jammu & Kashmir High Court
Vivek Anand vs Union Of India Through Secretary on 21 November, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Sr. No.38
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No.322/2023
Vivek Anand, Aged 35 years
S/o Sh. Prithvi Raj Anand
R/o Ward No.89, Nowshera, Rajouri,
Jammu & Kashmir 185151.
.....Petitioner/Appellant(s)
Through: Mr. Navneet Dubey, Advocate
Vs
1. Union of India through Secretary,
Ministry of External Affairs, Govt. of
India, New Union Civil Secretariat, New
Delhi-110001
2. The Chief Passport Officer,
Ministry of External Affairs,
PSP, Ministry of External Affairs Room
No.30 D, 2nd Floor Patiala House,
Tilak Marg, New Delhi-110001
3. The Regional Passport Officer,
Regional Passport Office, (Jammu).
Aquaf Trust Market Building,
Gandhi Nagar, Jammu.
4. Passport Officer
(Incharge District Rajouri),
C/o Regional Passport office,
Aquaf Trust Market Building,
Gandhi Nagar, Jammu.
5. Station House Officer, Police Station,
Nowshera, Government of UT of J&K,
Nowshera, District Rajouri
..... Respondent(s)
Through: Mr. Vishal Sharma, DSGI for R-1 to 4
Mr. Bhanu Jasrotia, GA for R-5
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
21.11.2024
01. The petitioner by the present petition, inter alia, seeks a direction upon the
respondents to renew-re-issue passport of the petitioner bearing
No.J1802153 w.e.f. 11.10.2020 for a further period of atleast five years in
terms of Section 7 and 8 of the Passport Act, 1967.
FACTUAL MARTIX
02. In the year 2010, the petitioner was issued a passport bearing
No.J1802153, which expired on 11.10.2020. Meanwhile, petitioner got
involved in FIR No.47/2017 under Sections 323, 341, 336 RPC and FIR
No.48/2018 under Sections 307/436/323/353/427/336/147/148 RPC 03
PDPP Act, both registered at Police Station, Nowshera. On 10.03.2020,
the petitioner applied for re-issuance/extension of his passport and also
paid the requisite fee of Rs.1500/-The application of the petitioner was
assigned ARN NO.19-0016829170 and Reference No.CPAABPONN6.
The application of the petitioner for re-issuance/ renewal of his passport
was kept on hold.
03. It is stated that on 13.04.2022 the petitioner again applied for reissuance
of passport after paying requisite fee of Rs.1500/-. The application was
assigned ARN No.22-0005329810 and Reference No.CPABOPKIP7.
Vide communication dated 11.05.2022, the petitioner was called upon by
respondent NO.3 to produce proper clarification/explanation with respect
to the discrepancies observed in reissue application submitted by the
petitioner. The discrepancies indicated in the communication are as
under:-
1. As per records in our system you applied in 2020 and Pvr
shows that FIR No.48/2018 is registered against you.
2. Now you have submitted a Court order in current application
file in which FIR number is different i.e. 47/2017.
04. It is submitted that the petitioner approached respondent No.5 in order to
obtain status of the FIR No.48/2028 through Judicial Magistrate 1st Class,
Nowshera and it has been disclosed that the FIR is still pending
investigation. The submission of the petitioner is that the contention of the
respondents that the passport cannot be issued to the petitioner is not only
violative of fundamental rights of the petitioner but is also contrary to the
provisions of the Passport Act, 1967.
05. In response to the notice issued, respondent Nos. 1 to 4 have filed their
reply, wherein it is stated that the petitioner applied for passport facility in
Re-issue category on 14.03.2020 vide File No.JM2076313630622. In the
application, petitioner declared that he has not been charged with criminal
proceedings nor is there any arrest warrant/summon pending before any
Court of law in India against him. On 14.03.2020, the personal particulars
form was initiated to SSP, Rajouri for obtaining police report. On
05.04.2021, police verification report was received by the respondent as
"not cleared" with the remarks that the petitioner is involved in FIR
No.48/2018. A show cause notice was issued to the petitioner on
15.04.2021 for furnishing explanation. Since no reply was received from
the petitioner, a reminder was issued on 06.05.2021. It is submitted that
on 06.07.2021, an order was received from the Ministry through e-mail
for closing all pending files of the year 2020 and accordingly, file of the
petitioner was closed on 07.07.2021. The petitioner again applied for
passport facility under re-issue category on 19.04.2021. Along with
application, petitioner submitted a Court order with respect to FIR
No.47/2017, however, as per the police verification report received
earlier, the petitioner was shown involved in FIR No.48/2018 whereas the
Court order submitted by the petitioner referred to FIR No.47/2017.
06. It is further submitted by the respondents that a show cause notice dated
11.05.2022 was issued to the petitioner seeking his explanation with
respect to the difference of FIR number in the police verification report
and in the Court order submitted by the petitioner. When no response was
received, a reminder was issued to the petitioner, however, no response
has been received from the petitioner and instead present petition has been
filed without any cause of action.
07. Heard learned counsel for the parties.
Submissions
03. Learned counsel for the petitioner has submitted that in FIR No.47/2017
of Police Station, Nowshera, the petitioner stands discharged vide order
dated 10.03.2020 passed in File No.89/Challan by the Court of JMIC,
Nowshera and FIR No.48/2018 is still under investigation. He submits
that mere registration of a FIR or pendency of investigation is not a
ground to refuse or deny renewal of passport to the petitioner. He relied
on a Judgment of the Coordinate Bench in WP(C) No.1534/2022 titled
Rajesh Gupta v. Union of India and another decided on 23.11.2022.
04. Per contra, Mr. Vishal Sharma, learned DSGI appearing for respondent
Nos. 1 to 4 submits that the request of the petitioner for re-issue/renewal
of passport has not been rejected and following the mandate of judgment
of Rajesh Gupta (supra) the petitioner has been asked to furnish
explanation regarding the two different FIRs and their status.
05. Considered the submissions of learned counsel for the parties and perused
the material on record.
Analysis
06. The main reason for non-renewal/ re-issue of passport to the petitioner is
his involvement in FIR Nos.47/2017 and 48/2018. Vide order dated
11.07.2024, Station House Officer, Police Station, Nowshera was directed
to appear along with status of the FIR No.47/2017 and FIR No.48/2018.
Regarding FIR No.47/2017 registered at Police Station, Nowshera, order
dated 10.03.2020 passed by the Court of JMIC, Nowshera indicates that
the petitioner has been discharged and challan stands dismissed.
07. Insofar as FIR No.48/2018 is concerned, Mr. Bhanu Jasrotia, learned GA
passed on a status report dated 13.08.2024, which is taken on record. The
status report indicates that the FIR No.48/2018 of Police Station,
Nowshera is still under investigation and till date Final Report has not
been produced before the competent Court of law.
08. Now the question that arises for consideration before this Court is that,
whether pendency of investigation in FIR No.48/20218 can be a valid
ground to refuse renewal/re-issue of passport in favour of the petitioner.
The issue as to when the proceedings can be said to be pending before the
criminal Court was considered by the Madras High Court in Venkatesh
Kandasamy v. Government of India, Ministry of External Affairs,
AIR 2015 Mad 3 and it was held that no proceedings can be said to have
been initiated under clause (a) of Section 190 of the Criminal Procedure
Code unless cognizance is taken by the Court for proceeding further in the
matter.
09. This Court in WP(C) No.1534/2022 Rajesh Gupta v. Union of India and
another, after considering the provisions of Section 6 of the Passport Act
in light of various decisions rendered by various High Courts, in
paragraph No.10 and 16 of the judgment dated 23.11.2022 held us thus:-
"10. Mere registration of an FIR or pendency of investigation by the
Investigating Agency is no ground to refuse issue or renewal of
passport requested by the applicant. At this stage, when FIR alone is
registered and investigation is undertaken by the Investigating Agency,
there are no proceedings before a criminal Court. The criminal
proceedings commence before the competent Court of criminal
jurisdiction only when a final report is laid by the investigating agency
before the Court or in case of a private complaint, when the criminal
Court of competent jurisdiction takes cognizance and proceeds in the
manner provided under the Code of Criminal Procedure. Till such
eventuality happens, we cannot say that there are criminal proceedings
pending in the Court. If that be the clear and unequivocal position
emerging from the scheme of Code of Criminal Procedure, there is not
even an iota of doubt that registration of FIR and the investigation
taken thereupon by the investigating agency cannot be said to be the
proceedings pending before a criminal Court in India to attract
disqualification laid down in Clause (f) of Sub Section (2) of Section
6 of the Passport Act."
.......................................
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"16. Viewed thus, I am of the considered view that the ground on
which the request of the petitioner for re-issue of the passport has
been rejected is totally untenable and unsustainable in law. The
respondents cannot insist upon the petitioner to produce NOC
from the Court when there are no criminal proceedings pending
in any competent Court of criminal jurisdiction. From the
documents on record, it is abundantly clear that there is only an
FIR pending investigation against the petitioner and no final
report in the matter has so far been submitted to the Court."
09. In view of the above, it is manifest that registration of FIR and the investigation
taken thereupon by the investigating agency cannot be said to be the proceedings
pending before a criminal Court in India to attract disqualification laid down in
Section 6 of the Passport Act. Since FIR No.48/2018, which is stated to be the main
cause for non renewal/re-issue of the passport to the petitioner, is still under
investigation, the same cannot be said to be the proceedings pending before a criminal
Court of India to attract disqualification for issuance of passport.
10. Since the respondents have sought clarification/explanation with regard to the
FIR No.48/2018 and now when from the status report filed by respondent No.5, it is
cleared that aforesaid FIR is still pending investigation and no Final Report has been
laid before the Court, this petition is disposed therehby directing respondents to
consider the application of the petitioner for issuance of passport in his favour in "re-
issue" category strictly in accordance with the law and mandate of Rajesh Gupta v.
Union of India (supra). Respondents are directed to take a decision within a period of
one month from the date of receipt of copy of this order.
(Moksha Khajuria Kazmi)
Judge
Jammu
21.11.2024
Vinod, PS
Whether the order is reportable: No
