Karnataka High Court

Sri Vikram C Dembla vs The Regional Passport Officer on 29 February, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

                                         -1-
                                                    NC: 2024:KHC:8504
                                                  WP No. 4204 of 2024




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 29TH DAY OF FEBRUARY, 2024

                                       BEFORE
                      THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                      WRIT PETITION NO. 4204 OF 2024 (GM-PASS)
               BETWEEN:

               SRI. VIKRAM C.DEMBLA
               AGED ABOUT 43 YEARS
               S/O CHATURBUJ DEMBL
               DIRECTOR OF M/S. ENSEMBLON AUTOMATION
               DESIGN AND ENTERTAINMENT PVT. LTD.,
               NO.11, 80 FEET ROAD, 4TH BLOCK
               KORAMANGALA, BENGALURU - 560 034.
                                                         ...PETITIONER
               (BY SRI. VISHNU HEGDE, ADVOCATE)

               AND:

                 THE REGIONAL PASSPORT OFFICER
                 GOVERNMENT OF INDIA
Digitally signed MINISTRY OF EXTERNAL AFFAIRS
by NAGAVENI REGIONAL PASSPORT OFFICE
Location: HIGH BENGALURU, 8TH BLOCK
COURT OF
KARNATAKA        80 FT. ROAD, KORAMANGALA
                 BENGALURU - 560 095.
                                                       ...RESPONDENT
               (BY SRI. ADITYA SINGH, CGC)

                    THIS WRIT PETITION IS FILED UNDER ARTICLES 226
               AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
               SETTING ASIDE IMPUGNED ORDER/ENDORSEMENT DATED
               14.8.23 ISSUED BY THE RESPONDENT BY VIDE FILE NO.
               BN1075619702323 (REF BI, SCB.315515609/23) ANNEXURE-A
               AND ISSUE DIRECTION OR WRIT OF MANDAMUS TO THE
                                 -2-
                                               NC: 2024:KHC:8504
                                            WP No. 4204 of 2024




RESPONDENT       TO   RE    ISSUE     THE   PASSPORT       TO   THE
PETITIONER.

    THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
                             ORDER

The petitioner is before this Court calling in question the

endorsement dated 14-08-2023 issued by the respondent and

also for re-issuance of passport to the petitioner.

2. The petitioner is the holder of Indian passport having

secured the same on 31-08-2015, which was to expire on 30-

08-2025. Since the pages in the passport got exhausted due to

petitioner's travel, he applied for re-issuance of passport and

an application to that effect was made on 27-07-2023 itself, at

which point in time the Passport Authorities got to know that a

criminal case in C.C.No.26145 of 2017 is pending trial against

the petitioner before the concerned Court. Therefore, the

impugned endorsement comes to be issued against the

petitioner. It is this endorsement that has driven the petitioner

to this Court in the subject petition.

NC: 2024:KHC:8504

3. Heard Sri. Vishnu Hegde, learned counsel appearing

for petitioner and Sri. Aditya Singh, learned Central

Government Counsel appearing for respondent.

4. It is an admitted fact that as on today, a criminal case

in the aforesaid C.C.No.26145 of 2017 is pending trial against

the petitioner, before the concerned Court. If it is pending trial,

for issuance of a normal validity passport, Section 6(2)(f) of the

Passports Act, 1967 would come in the way. If Section 6(2)(f)

is coming in the way, recourse is to be had to the GSR 570

Notification which clearly depicts that a short validity passport

is to be given to the person who is wanting to travel, against

whom criminal case is pending, and is at the trial stage before

the concerned Court.

5. This Court, in identical circumstances, in

W.P. No.24269 of 2023 disposed on 04-12-2023, has held

as follows:

"....

17. Reference being made to the judgment of the High Court of Andhra Pradesh in the case of KADAR VALLI

NC: 2024:KHC:8504

SHAIK v. UNION OF INDIA1 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;

(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

2023 SCC OnLine AP 406

NC: 2024:KHC:8504

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:

NC: 2024:KHC:8504

"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;

NC: 2024:KHC:8504

(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity 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.

NC: 2024:KHC:8504

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

NC: 2024:KHC:8504

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."

6. In the light of the issue standing answered by this

Court in the aforesaid case, notwithstanding the fact that the

petitioner has suppressed the factum of a criminal case pending

against him, since the law is settled by this Court, I deem it

appropriate to pass the following:

ORDER

(i) The prayer of the petitioner for issuance of a regular passport/normal validity passport for 10 years is rejected.

(ii) The impugned endorsement dated 14-08-2023 stands sustained.

(iii) The petitioner shall approach the concerned Court seeking issuance of a short validity passport and the concerned Court shall consider such

- 10 -

NC: 2024:KHC:8504

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.

(vi) If the application is filed before the concerned Court with all necessities as is observed in the aforesaid order, the Court shall pass necessary orders, as expeditiously as possible.

Sd/-

JUDGE

BKP

CT:SS