Karnataka High Court
Santhosh Beejadi Srinivasa vs Union Of India on 4 December, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF DECEMBER, 2023 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.24269 OF 2023 (GM - PASS)
BETWEEN:
SANTHOSH BEEJADI SRINIVASA
S/O SRINIVASA RAO B.G.,
AGED ABOUT 43 YEARS
R/AT 'SRI KRISHNA'
BESIDE VIJAYASHREE MOTORS
SIRA ROAD, BEHIND BAVIKATTE CHOULTRY
TUMAKURU - 572 101.
... PETITIONER
(BY SRI.KARTHIK YADAV U., ADVOCATE)
AND:
1. UNION OF INDIA
MINISTRY OF EXTERNAL AFFAIRS
REGIONAL PASSPORT OFFICE
BENGALURU
REPRESENTED BY
REGIONAL PASSPORT OFFICER
8TH BLOCK, 80 FEET ROAD
KORAMANGALA
BENGALURU - 560 095.
2. THE REGIONAL PASSPORT OFFICE
PASSPORT SEVA KENDRA
SAI ARCADE, SURVEY NO.56/P
2
DEVARABISANAHALLI
OUTER RING ROAD, BENGALURU
KARNATAKA - 560 103
REPT. BY ITS GRANTING OFFICER.
3. STATE OF KARNATAKA
BY TUMAKURU TOWN POLICE
TUMAKURU - 572 101
REPT. BY SPP, HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI SHIVAPRASAD SHANTANAGOUDAR, CGC FOR R1 AND R2;
SRI KIRAN KUMAR, HCGP FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
IMPUGNED ACKNOWLEDGMENT DTD 20.09.2023 ISSUED BY R-2
VIDE ANNX - A; DIRECTING THE R-1 AND 2 TO ISSUE NORMAL
VALIDITY PASSPORT HAVING VALIDITY PERIOD OF TEN YEARS AS
CONTEMPLATED UNDER THE RULES.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 28.11.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is knocking at the doors of this Court calling in
question acknowledgment dated 20-09-2023 issued by the 2nd
respondent/Regional Passport Office declining to issue a normal
validity passport for a period of ten years to the petitioner, on its
re-issuance.
2. Facts adumbrated are as follows:-
The petitioner is an employee working in the cadre of Senior
Manager (Process and Planning) at Mann+Hummel Filter Private
Limited, Tumakuru. The petitioner was issued a normal passport
like any citizen of the nation which was to be valid for a period of
ten years from 11-04-2014 to 10-04-2024. During the said period
the petitioner gets embroiled in a crime registered for offences
punishable under Sections 302, 201, 120-B and 182 r/w 34 of the
IPC. The petitioner is arrayed as accused No.2 and his father and
wife are arrayed as accused Nos. 1 and 3. The said proceedings are
pending trial in S.C.No.28 of 2017 before the VI Additional District
and Sessions Judge, Tumakuru. When the crime was registered, the
petitioner preferred an application under Section 439 of the Cr.P.C.,
before the learned Sessions Judge. The learned Sessions Judge, by
an order dated 27-04-2015, imposing certain conditions permitted
travel of the petitioner by directing him to obtain prior permission
at every point of travel from the Court of Sessions. It appears that
the petitioner has at every point in time sought permission and
travelled abroad on his work.
3. The issue in the present case is not concerning permission
to travel. As observed hereinabove, the validity of the passport
issued to the petitioner on 11-04-2014 would expire on
10-04-2024. The petitioner possesses a Schengen VISA which is
valid up to 26-08-2014 but he is not permitted to travel on the
score that validity of the passport has come down to less than six
months. Therefore, he makes an application for re-issuance of the
passport. The application is returned by declining re-issuance on
hold on account of criminal case pending trial before the competent
Court. This is communicated to the petitioner through an
acknowledgement letter which is impugned in the subject petition.
4. Heard Sri U.Karthik Yadav, learned counsel appearing for
petitioner and Sri Shivaprasad Shantanagoudar, learned Central
Government Counsel appearing for respondents 1 and 2.
SUBMISSIONS:
PETITIONER:
5. The learned counsel appearing for the petitioner would
contend that it is not for the first time the petitioner is being issued
with the passport. He had a passport right from 11-04-2014 which
was valid upto 10-04-2024. As the validity of the passport has
come down to less than six months, he is denied permission to
travel. He would submit that pendency of a criminal case cannot
come in the way of re-issuance of passport to a citizen. Travel or
otherwise is a different circumstance. But, merely because a
criminal case is pending, the passport of the petitioner cannot be
denied to be re-issued. He would seek to place reliance upon
decisions rendered by coordinate Benches of this Court in
KRISHNA CHIRANJEEVI RAO PALUKURI VENKATA v. THE
UNION OF INDIA AND OTHERS1; SANJAY G.KHENY v. THE
UNION OF INDIA AND OTHERS2 and SRIMATI NASEEMA
KHANUM v. THE UNION OF INDIA AND OTHERS3. On placing
W.P.No.9141 of 2020 decided on 1-10-2020
W.P.No.201057 of 2022 decided on 13-07-2022
W.P.No.105735 of 2022 decided on 18-01-2023
reliance upon these judgments, he would submit that writ petition
be allowed with a direction to the 2nd respondent to issue a normal
validity passport for a period of ten years.
UNION OF INDIA:
6. Per-contra, the learned counsel representing respondents 1
and 2 Sri Shivaprasad Shantanagoudar would vehemently refute
the submissions to contend that judgments rendered by the
coordinate Benches were rendered following the judgment of the
Delhi High Court. The judgment of the Delhi High Court in the case
of ASHOK KHANNA was taken in appeal before the Apex Court
and the Apex Court has restricted the findings only to the
respondent therein. Therefore, it is not a precedent to be followed.
He would seek to place reliance on a judgment rendered by this
Bench in the case of KAJAL NARESH KUMAR v. UNI0N OF
INDIA4 to buttress his submission that passport cannot be re-
issued as long as the criminal case is pending against the
petitioner.
W.P.No.20850 of 2022 decided on 16-11-2022
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record. In furtherance thereof, the issue that falls for
my consideration is:
"Whether pendency of a criminal case would bar
issuance or renewal/re-issuance of a passport to a citizen of
this nation?"
8. To consider the aforesaid issue, it would become necessary
to notice certain provisions of the Passports Act, 1967 (hereinafter
referred to as 'the Act' for short). The relevant provisions that are
germane to be noticed are Sections 2(e), 3, 5, 6, 7, 10 and 22 of
the Act and they read as follows:
"2. Definitions.--In this Act, unless the context
otherwise requires,--
... ... ...
(e) "travel document" means a travel document issued or
deemed to have been issued under this Act.
3. Passport or travel document for departure from
India.--No person shall depart from, or attempt to depart from,
India unless he holds in this behalf a valid passport or travel
document.
Explanation.--For the purposes of this section,--
(a) "passport" includes a passport which having been
issued by or under the authority of the Government
of a foreign country satisfies the conditions
prescribed under the Passport (Entry into India)
Act, 1920 (34 of 1920), in respect of the class of
passports to which it belongs;
(b) "travel document" includes a travel document which
having been issued by or under the authority of the
Government of a foreign country satisfies the conditions
prescribed.
... ... ...
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 bysuch 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.
(1-A) 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 [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 document 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 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
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) 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) 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 passports and travel documents.--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.
... ... ...
10. Variation, impounding and revocation of
passports and travel documents.--(1) The passport authority
may, having regard to the provisions of sub-section (1) of
Section 6 or any notification under Section 19, vary or cancel
the endorsements on a passport or travel document or may,
with the previous approval of the Central Government, vary or
cancel the conditions (other than the prescribed conditions)
subject to which a passport or travel document has been issued
and may, for that purpose, require the holder of a passport or
travel document, by notice in writing, to deliver up the passport
or travel document to it within such time as may be specified in
the notice and the holder shall comply with such notice.
(2) The passport authority may, on the application of the
holder of a passport or a travel document, and with the previous
approval of the Central Government also vary or cancel the
conditions (other than the prescribed conditions) of the passport
or travel document.
(3) The passport authority may impound or cause to be
impounded or revoke a passport or travel document,--
(a) if the passport authority is satisfied that the holder of
the passport or travel document is in wrongful
possession thereof;
(b) 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 the
passport or travel document or any other person on
his behalf:
Provided that if the holder of such passport
obtains another passport, the passport authority shall
also impound or cause to be impounded or revoke
such other passport.
(c) if the passport authority deems it necessary so to do
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;
(d) if the holder of the passport or travel document has, at
any time after the issue of the passport or travel
document, 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;
(e) if proceedings in respect of an offence alleged to
have been committed by the holder of the
passport or travel document are pending before
a criminal court in India;
(f) if any of the conditions of the passport or travel
document has been contravened;
(g) if the holder of the passport or travel document has
failed to comply with a notice under sub-section (1)
requiring him to deliver up the same;
(h) if it is brought to the notice of the passport authority
that a warrant or summons for the appearance, or a
warrant for the arrest, of the holder of the passport or
travel document has been issued by a court under any
law for the time being in force or if an order
prohibiting the departure from India of the holder of
the passport or other travel document has been made
by any such court and the passport authority is
satisfied that a warrant or summons has been so
issued or an order has been so made.
(4) The passport authority may also revoke a passport or
travel document on the application of the holder thereof.
(5) Where the passport authority makes an order varying
or cancelling the endorsements on, or varying the conditions of,
a passport or travel document under sub-section (1) or an order
impounding or revoking a passport or travel document under
sub-section (3), it shall record in writing a brief statement of the
reasons for making such order and furnish to the holder of the
passport or travel document 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 a copy.
(6) The authority to whom the passport authority is
subordinate may, by order in writing, impound or cause to be
impounded or revoke a passport or travel document on any
ground on which it may be impounded or revoked by the
passport authority and the foregoing provisions of this section
shall, as far as may be, apply in relation to the impounding or
revocation of a passport or travel document by such authority.
(7) A court convicting the holder of a passport or travel
document of any offence under this Act or the rules made
thereunder may also revoke the passport or travel document:
Provided that if the conviction is set aside on appeal or
otherwise the revocation shall become void.
(8) An order of revocation under sub-section (7) may also
be made by an appellate court or by the High Court when
exercising its powers of revision.
(9) On the revocation of a passport or travel document
under this section the holder thereof shall, without delay
surrender the passport or travel document, if the same has not
already been impounded, to the authority by whom it has been
revoked or to such other authority as may be specified in this
behalf in the order of revocation.
... ... ...
22. Power to exempt.--Where the Central
Government is of the opinion that it is necessary or
expedient in the public interest so to do, it may, by
notification in the Official Gazette and subject to such
conditions, if any, as it may specify in the notification,--
(a) exempt any person or class of persons from the
operation of all or any of the provisions of this
Act or the rules made thereunder; and
(b) as often as may be, cancel any such notification and
again subject, by a like notification, the person or
class of persons to the operation of such provisions."
(Emphasis supplied)
Section 2(e) defines a 'travel document' which has been issued or
deemed to have been issued under the Act. Therefore, the passport
becomes a travel document for departure from India and return.
Section 3 depicts what a passport would be. Section 5 deals with
application for passport and the manner in which the application
should be made before the Passport Authorities. Section 6 forms
the fulcrum of the lis. Section 6(1) directs that subject to other
provisions of the Act the passport authority shall refuse to make an
endorsement for visiting any country under clause (b) or (c) of sub-
section (2) of Section 5 on several grounds stipulated therein. The
grounds are clauses (a) to (d) of sub-section (1) and clauses (a) to
(i) of sub-section (2) of Section 6. Section 7 deals with duration of
passport and travel documents. A passport or a travel document
unless revoked continues to be in force for such period as may be
prescribed in the said travel document of each class of passport.
Section 10 deals with variation, impounding and revocation of
passport and travel documents. Section 22 empowers the Central
Government to exempt any person or class of persons from
operation of all or any of the provisions of the Act by issuance of a
notification.
9. In furtherance of Section 22, Government of India in the
Ministry of External Affairs, has issued a notification on 25-08-1993
in G.S.R.570(E) (for short 'GSR 570 Notification'). GSR 570
notification deals with a situation of the kind that is projected in the
case at hand. Therefore, I deem it appropriate to notice the
notification insofar as it is germane. It reads as follows:
"The Notification dated 25.08.1993 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 supersession of the notification of the Government of
India in the Ministry of External Affairs No. G.S.R. 298(E), dated
the 14th April, 1976, the Central Government, being of the
opinion that it is necessary in 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
(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 travelled 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."
(Emphasis supplied)
GSR 570 deals with a situation of the kind in the case at hand. It
permits issuance of short validity passport pursuant to the orders
that would be passed by the concerned Court according to the
specified period and if no period is specified, the passport would be
issued for a period of one year. Therefore, it is for the applicant
against whom criminal case is pending, in any Court of law in the
country, to approach the concerned Court before which the
proceeding is pending, and seek for permission to travel; if such
permission is granted, it will have to be in tune with the conditions
in GSR 570 (supra).
10. Section 24 of the Act empowers the Central Government
to make Rules for carrying out the purposes of the Act. Rules are
promulgated in the year 1980 i.e., the passports Rules, 1980
(hereinafter referred to as 'the Rules' for short). Rule 5 deals with
form of applications for issue of passport, renewal or re-issuance
thereof. The form is found in Schedule-III.
11. The aforementioned form is the broad statutory
framework for issuance, re-issuance, variation, cancellation,
impounding of passport as also, the form in which the application
for issuance or re-issuance is to be made.
APPLICABILITY OF THE ACT TO THE SUBJECT FACTS:
12. The petitioner is issued passport on 11-04-2014. Its
validity is up to 10-04-2024. In the interregnum, the petitioner
gets embroiled in a crime. The substance of the crime is mother of
the petitioner commits suicide. Initially an unnatural death report
was prepared by the Police but later when the investigation was
directed to be taken up, the petitioner, his father and his wife were
all arrayed as accused 1, 2 and 3. The offences were the ones
punishable under Sections 302, 201, 120-B, 182 r/w 34 of the IPC.
The case was committed to the Court of Sessions and presently
pending trial in S.C.No.28 of 2017. Therefore, it is a case where
the petitioner is one of the accused in an offence which can even
result in capital punishment. The trial is in progress. The petitioner
is not absolved of the crime, by any competent Court of law even to
this date. It is an altogether different circumstance that the
petitioner has been permitted to travel, by the Court of Sessions,
intermittently for his work. That is not the issue in the case at hand.
The issue is validity of the passport of the petitioner or the passport
having less than six months to expire which makes the petitioner
ineligible for issuance of visa and travel. Therefore, it is germane to
notice whether such ineligibility has a statutory foundation. It
therefore becomes germane to notice the acknowledgment of denial
issued by the 2nd respondent. It reads as follows:
"Acknowledgement Letter
REISSUE PASSPORT-Normal File No.:BN2075801459323
SANTHOSH BEEJADI SRINIVASA
Application Status * Service Completion zone Fee Receipt/Reference No. Penalty Receipt No.
On Hold GO (Granting) CPADBFRJW1 NA
Police Verification Mode** Passport Validity Cancelled Passport No. ECR Status
NA NA NA NA
Documents Submitted Documents Requiring Re- Documents Verified with
successfully submission/ Additional originals, however,
1. Aadhar Card (Address Proof) Document(s) Required confirmation from issuing
2. Scanned Application Form Yes authority is required
3. Old passport
4.ac-f ppt-decl
On Hold Remarks By Granting Officer: case still pending, await for court order for SVP/Permission from
Court.
Next Appointment Date and Time:27/09/2023, 12:00PM Reporting Time:11:45 AM"
The remark is that the case is still pending, await court order for
issuance of short validity passport/await permission from the Court.
13. Section 6 deals with grounds for refusal of passport. Sub-
section (2) (e) and (f) of Section 6 quoted supra deal with the
present situation. If the applicant at any time during the period of
five years immediately preceding the date of application has been
convicted for any offence involving moral turpitude and sentenced
thereof to imprisonment for not less than 2 years, passport cannot
be issued or re-issued. It is not the situation in the case at hand.
Clause (f) mandates that where proceedings in respect of an
offence alleged to have been committed by the applicant are
pending before a criminal court in India, the passport authority is
empowered to deny issue of travel document as obtaining in clause
(c) of Sub-section (2) of Section (5) of the Act. It is an admitted
fact that proceedings against the petitioner are pending trial in
S.C.No.28 of 2017 before the learned Sessions Judge for the afore-
quoted offences. Denial of re-issuance of passport is thus in
consonance with law.
14. The petitioner has relied on several judgments of co-
ordinate Benches of this Court to contend that the issue stands
answered and pendency of criminal case should not come in the
way of re-issuance or renewal of passport; it can at best be at the
time of issuance of passport, at the first instance. The co-ordinate
Bench in the case of KRISHNA CHIRANJEEVI RAO PALUKURI
VENKATA (supra) though considers Section 6(2)(f), observes that
the provision would be applicable only to issuance of a fresh
passport and not for renewal or re-issuance. For such observation,
the co-ordinate Bench follows the judgment rendered by the High
Court of Delhi in the case of ASHOK KHANNA. The Delhi High
Court in the case of ASHOK KHANNA v. CENTRAL BUREAU OF
INVESTIGATION5 has held as follows:
"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
2019 SCC OnLine Del 11080
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."
(Emphasis supplied)
The subsequent judgment by another co-ordinate Bench in SANJAY
G.KHENY (supra) relies on the afore-quoted judgment of other co-
ordinate Bench in the case of KRISHNA CHIRANJEEVI RAO
PALUKURI VENKATA and allows the petition holding that it can at
best be for issuance of passport and cannot be for re-issuance or
renewal of passport.
15. The judgment of the High Court of Delhi upon which both
the judgments of coordinate Benches placed reliance upon was
tossed before the Apex Court. The Apex Court in terms of its order
dated 02-05-2022 restricted the question of law only to the said
case. The Apex Court has, in the case of CENTRAL BUREAU OF
INVESTIGATION v. ASHOK KHANNA6 held as follows:
"1. Delay condoned.
2. In the facts and circumstances of the present
case and without expressing any opinion on the question
of law sought to be raised in these proceedings, we are
SLP (Criminal) Diary No.6142 of 2022 decided on 02-05-022
not inclined to entertain the Special Leave Petitions under
Article 136 of the Constitution. We may also clarify that
the order the High Court will be restricted only to the
facts and circumstances of the present case and shall
have application only to the case of the respondent.
3. The Special Leave Petitions are disposed of,
subject to the above clarification.
4. Pending application, if any, stands disposed of."
(Emphasis supplied)
The Apex Court, did not express any opinion on the question of law.
Question of law, I mean would be whether an applicant against
whom criminal case is pending seeks renewal/reissuance of
passport, can be denied or otherwise, but restricted the law laid
down by High Court of Delhi only to the facts and circumstances of
the case of ASHOK KHANNA and will have application only to the
case before the Apex Court. The Special Leave Petitions were
disposed with the said clarification.
16. Therefore, the trail of judgments would go this way. The
High Court of Delhi holds in the case of ASHOK KHANNA, that
pendency of a criminal case will not come in the way of re-issuance
of passport; this is followed in KRISHNA CHIRANJEEVI RAO
PALUKURI VENKATA's case; the said judgment is followed in
SANJAY G.KHENY's case. Therefore the foundation, inter alia, to
render the finding by both the co-ordinate Benches of this Court,
was the judgments rendered by the High Court of Delhi. In the
light of the Apex Court restricting the findings only to the said
respondent, the law declared by the co-ordinate Benches of this
Court cannot mean that they have become final and would be
binding on this Court to follow.
17. Reference being made to the judgment of the High Court
of Andhra Pradesh in the case of KADAR VALLI SHAIK v. UNION
OF INDIA7 becomes apposite, the Andhra Pradesh High Court
considers the entire spectrum of the Act and orders passed by co-
ordinate Benches of this Court and holds that Section 6(2)(f) would
prevail. The summing up by the Andhra Pradesh High Court is as
follows:
"103. To sum up, this Court holds that;
(i) 'Issue' of passport in Section 5 of the
Passports Act includes 'renewal' of the passport as
well;
2023 SCC OnLine AP 406
(ii) While considering the renewal of the
passport, the passport authority would be within its
jurisdiction and authority to refuse renewal, on the
same grounds as in the cases of issuance of the
passport for 'the first time', provided by Section 6
(2) of the Passport Act. In other words, Section 6
(2) of the Passport Act applies to renewal of the
passport, as well;
(iii) In the cases for renewal, to which Section
6 (2) (f) of the Passports Act is attracted, i.e.,
where the applicant is facing criminal trial in a
criminal Court in India, renewal of the passport
shall be refused, subject to the fulfillment of the
condition under the notification of the Central
Government, dated 25.08.1993, issued in exercise
of the powers conferred by Section 22 of the
Passports Act, upon which such applicant shall
stand exempted from the operation of the
provisions of Clause (f) of sub-section (2) of
Section 6;
(iv) In a case where clause (f) of Section 6
(2) is attracted, the holder of the passport, for its
renewal, will have to produce an order from the
Court concerned, where the proceedings against
him are pending trial in respect of an offence
alleged to have been committed by him, permitting
him to depart from India;
(v) The notification dated 25.08.1993 applies
to the citizen applicants for renewal of the passport
even if already departed from India under the
passport of which renewal is sought.
(vi) On production of an order, from the concerned
Court, as referred in the notification, the renewal of the
passport shall not be refused only on the ground of
Section 6 (2) (f), i.e., mere pendency of the criminal case
for trial;
(vii) Condition (d) of the notification dated
25.08.1993 is an additional requirement and is not in
substitution of the requirement from those
citizen/applicants who have to produce an order of the
Court concerned, where the criminal case is pending,
permitting him to depart from India.
(Emphasis supplied)
The Andhra Pradesh High Court holds that while considering
renewal or re-issuance of passport, the authority would be within its
jurisdiction to refuse renewal on the same grounds as in cases of
issuance of passport for the first time provided in Section 6(2)(f) of
the Act.
18. The unmistakable inference that can be drawn is that,
there is no difference between renewal, re-issuance or first issuance
of the passport under Section 6(2) of the Act. Every issuance, re-
issuance or renewal will have to meet the requirements or pass
through the rigours of Section 6. To consider the submission or
contra submission, hypothetically as an illustration, at the time of
issuance of passport to an applicant, the applicant is clean and no
proceedings are pending against him. In the interregnum during the
validity of the passport the applicant gets embroiled in a crime; trial
is pending or gets convicted for an offence, it cannot be said that
those facts have to be ignored and passport should be directed to
be re-issued only on the score that, it is for renewal and no rigour
for issuance of a fresh passport can be insisted upon. This would
sometimes result in the accused, holder of a passport, fleeing
justice and frustrating trial. It may not be in all circumstances, but
it is open to such circumstance. It is, therefore, the rigour under
Section 6(2)(f) of the Act will have to be given credence as
mandated under the statute failing which, it would render section
6(2)(f) of the Act redundant or otiose.
19. This Bench in the case of KAJAL NARESH KUMAR
(supra) has held as follows:
"8. The afore-narrated facts are not in dispute. The
petitioner was in possession of a passport which had expired at
the relevant point in time. The petitioner seeks re-issuance of
his passport on its expiry. On the basis of the documents
submitted, the respondent-Regional Passport Officer reissues
the passport in favour of the petitioner. Later when the police
verification is done as a routine in every case, it comes to the
knowledge of the respondents that the petitioner is involved in a
criminal case in Crime No.16 of 2021. Noticing the fact that the
petitioner had suppressed the factum of pendency of a criminal
case against him and had secured the passport by
misrepresentation, issued a notice directing him to surrenders
the passport. The involvement of the petitioner as an accused in
Crime No.16 of 2021 is not in dispute. 'B' report is yet to be
considered by the learned Magistrate. Therefore, the 'B' report
being filed will not absolve the petitioner of the crime. Section 6
of the Act reads as follows:
"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 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."
(Emphasis supplied)
Section 6 deals with refusal of passport and travel
documents etc. Section 6(2)(f) mandates that if proceedings
are pending in respect of an offence alleged to have been
committed by the applicant before a criminal Court in India, the
passport authority would have the right to refuse issue of
passport or travel documents for visiting any foreign country.
Therefore, issuance of passport or re-issuance of passport is
subject to Section 6(2)(f) of the Act.
9. It is an admitted fact in the case at hand that a
crime in Crime No.16 of 2021 is pending against the
petitioner. The Police having filed a 'B' report in the
matter would not mean that proceedings against the
petitioner have culminated in her acquittal. The rigour of
Section 6(2)(f) of the Act gets evaporated only when the
applicant who is facing criminal proceedings or a FIR is
acquitted, discharged or the proceeding against the said
applicant is quashed by a competent Court of law, in
exercise of its powers under Section 482 of the Cr.P.C.
None of these circumstances exist in the case at hand. All
that has happened is, the Police have filed a 'B' report.
Mere filing of 'B' report would not mean that the
petitioner becomes allegation free qua Section 6(2)(f) of
the Act.
(Emphasis supplied)
20. On a coalesce of the provisions of the Act, the Rules, the
judgments rendered by the co-ordinate Benches, its restriction by
the Apex Court and the judgment rendered by this Bench, would all
lead to an unmistakable conclusion that Section 6(2)(f) and GSR
570 Notification makes a person ineligible for issuance of passport.
The issuance would include renewal or re-issuance. Separate
yardstick is nowhere indicated in the Act or the Rules. The Rules
cannot be rendered flexible to such circumstances by a stroke of
pen or a fiat of this Court in exercise of its jurisdiction under Article
226 of the Constitution of India. As long as Section 6(2)(f) stares at
any application, be it for fresh, renewal or re-issuance, such
application cannot be directed to be granted diluting the rigor of
Section 6(2)(f). The applicant is under a cloud, "if an applicant
of the kind in the case at hand, wants to walk over the
clouds; the cloud over such applicant must walk away."
21. For the aforesaid reasons, the following:
ORDER
(i) The prayer for issuance of a regular passport/normal validity
passport for 10 years is rejected.
(ii) The impugned acknowledgement rejecting issuance of
regular passport stands sustained.
(iii) The petitioner shall approach the concerned Court seeking
issuance of a short validity passport and the concerned Court
shall consider such application strictly in consonance with the
Act, GSR-570 and its requirements.
(iv) The Court shall not reject the application/permission for
issuance of a short validity passport on the ground of
pendency of criminal case before it.
(v) The petitioner, in the application, shall clearly indicate the
reason and the intended date of travel from the shores of this
nation and his return to the shores of the nation.
Sd/-
JUDGE
bkp
CT:MJ
