Kerala High Court
Thadevoose Sebastian vs The Regional Passport Office on 30 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
WP(C) NO. 15182 OF 2021
PETITIONER:
THADEVOOSE SEBASTIAN,
AGED 48 YEARS, S/O. SEBASTIAN,
NOW RESIDING AT TC 33/31 S.S. VILLA,
OPP. COMMUNITY HALL, KANNANTHURA,
BEACH P.O.
THIRUVANANTHAPURAM, KERALA 695 007.
BY
ADVS.S.SAJU
ADVS.A.V.SAJAN
ADVS.NEELANJANA NAIR
ADVS.POOJA SEBASTIAN
RESPONDENTS:
1 THE REGIONAL PASSPORT OFFICE
TRIVANDRUM SNSM BUILDING,
KARALKADA JUNCTION, PETTAH P.O.
TRIVANDRUM 695 024, KERALA,
REPRESENTED THROUGH ITS REGIONAL PASSPORT
OFFICER).
2 THE REGIONAL PASSPORT OFFICER,
THE REGIONAL PASSPORT OFFICE,
TRIVANDRUM SNSM BUILDING,
KARALKADA JUNCTION, PETTAH P.O.
TRIVANDRUM 695 024, KERALA,
BY ADV SHRI.P.VIJAYAKUMAR, ASG
W.P.(C) No.15182/21 -:2:-
BY ADV.JAISHANKER, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.09.2021, THE COURT ON 30.09.2021 DELIVERED
THE FOLLOWING:
W.P.(C) No.15182/21 -:3:-
"C.R."
BECHU KURIAN THOMAS, J.
-----------------------------------------
W.P.(C) No.15182 of 2021
----------------------------------------
Dated this the 30th day of September, 2021
JUDGMENT
Petitioner challenges the communication issued by the
Regional Passport Officer informing him of the short comings in his
application for issuance of a passport. Reliefs are also sought for the
issuance of a fresh passport in accordance with the circulars issued
by the Government of India.
2. Petitioner was the holder of an Indian Passport bearing No.
Z1969747 issued from Dubai and valid till 11.12.2020. It is alleged
by the petitioner that, while he came for a visit to his hometown in
April, 2012, he lost his passport within the premises of
Nedumbassery Airport. The fact of loss of passport was intimated to
the police station and he obtained a certificate dated 20.11.2012 from
the police that no useful information have been received relating to
the missing passport. Curiously, on the very same day petitioner
received the certificate as mentioned above, an FIR was registered
before the Ernakulam Rural Police Station against the petitioner as
F.I.R. No.1480 dated 20.11.2012, alleging offences under sections
406, 419 and 420 of IPC apart from sections 12(1)(a), (d) of
Passports Act, 1967. It was alleged in the crime that petitioner had
impersonated the defacto complainant and travelled with the defacto
complainant's passport on 10.10.2012 from Sharjah, after taking
possession of the passport of the complainant by committing a
breach of trust.
3. Petitioner contends that he had applied for a fresh passport
on 26.11.2012, but since, in the meanwhile, the aforenoted crime
was registered, petitioner was stuck in Kerala and has not returned
back to Sharja till date. It is pleaded that by Ext.P5 dated 08.12.2014
petitioner was informed from the passport office that due to the
adverse report on the pendency of the crime, the file for issuance of
passport was closed.
4. Almost five years after the closure of the file relating to his
application for issuance of passport, petitioner applied afresh, for a
new passport, claiming that the police had dropped the proceedings
against him. It is further alleged in the petition that even though a
police clearance was issued, on 19.02.2020, Ext.P7 communication
was issued by the 1st respondent intimating shortcomings in his
application for the passport. Petitioner contends that despite having
proper police clearance and despite the closure of the crime
registered against him, the passport authorities are harassing him by
referring to those false crimes.
5. The proceedings of this case on 30.07.2021 reflects that
submissions were made on behalf of the petitioner that police had
filed a closure report in the crime against the petitioner and hence he
need not even get permission from the Magistrate's Court.
6. Contrary to the aforesaid, it is now submitted by the learned
counsel for the petitioner that, the criminal case against the petitioner
is still pending investigation and the submission on 30.07.2021 was
incorrect and was an unfortunate instance of wrong instructions.
According to the learned counsel, it is now reliably learnt that the
police are yet to complete the investigation.
7. In view of the aforesaid submission of the learned counsel, it
is admitted that a crime is still pending against the petitioner but at
the investigation stage. In the aforesaid circumstances, it may be
apposite to consider the circumstances in which a passport can be
denied to a citizen of India.
8. The Passports Act, 1967 (for short 'the Act') deals with the
issuance of passports and regulating the departure of citizens of
India to places outside the country. An application for obtaining a
passport has to be submitted under section 5 of the Act while the
refusal of a passport is dealt with under section 6 of the Act.
Applicants for issuance of passport who are facing criminal
proceedings are dealt with under section 6(2)(f) which reads as
under:
6. Refusal of passports, travel documents, etc.-
(1) xxxx xxxx xxxx xxxx xxxx
(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) xxxx xxxx xxxx xxxx
(b) xxxx xxxx xxxx xxxx
(c) xxxx xxxx xxxx xxxx
(d) xxxx xxxx xxxx xxxx
(e) xxxx xxxx xxxx xxxx
(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) xxxx xxxx xxxx xxxx
(h) xxxx xxxx xxxx xxxx
(i) xxxx xxxx xxxx xxxx
9. A bare reading of the above provision may indicate that the
passport issuing authority shall be bound to reject the application for
issuance of a passport if "criminal proceedings are pending" in any
Court in India.
10. It is indubitable that the right to travel beyond the frontiers of
our country is a facet of personal liberty under Article 21 of the
Constitution of India. (See Satwant Singh Sawhney v. D.
Ramarathnam, Assistant Passport Officer, New Delhi and
Others (AIR 1967 SC 1836) and Maneka Gandhi v. Union of India
and Another [(1978) 1 SCC 248]. (Satwant Singh's case is pre-
Passport Act case while Maneka Gandhi's case is after the Passport
Act). However comprehensive the said liberty be, it is still subject to
'procedure established by law'. Thus after the enactment of the Act in
1967, a law came into existence which enabled denial merely on the
ground of existence of a criminal proceeding. Another facet of Article
21 that encapsulates every law, laying down a procedure to deprive
the personal liberty of a person is the triplet of 'just, fair and
reasonable'.
11. Thus to make the deprivation of the personal liberty of the
right to travel abroad, just, fair and reasonable, the Government of
India in exercise of the powers under section 22 of the Act, issued a
notification, which is statutory in character, exempting citizens of
India against whom criminal proceedings are pending before a
criminal court from the operation of section 6(2)(f) of the Act on
condition that the applicant produces orders from the Court
concerned permitting to depart from India.
12. It may be germane to reproduce the notification issued by
the Government of India as GSR 570(E) dated 25.8.1993, which is
as follows:
"GSR 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.
GSR 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 subsection
(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 of 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;
(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 given 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."
13. Petitioner has produced an Office Memorandum dated
10.10.2019 issued by the Government of India reiterating the terms
of the notification extracted above. Since GSR 570(E) dated
25.8.1993 is statutory in character, it has the force of law, unlike the
Office Memorandum which can act only as a guide to the passport
officers.
14. In this context, it is relevant to refer to the decision in Asok
Kumar v. State of Kerala (2009 (2) KLT 712). In the said case,
relying upon the notification GSR 570(E) dated 25.8.1993, this Court
rejected the refusal of the Magistrate, before whom criminal
proceedings were pending against the accused in that case, to travel
abroad. Noticing that there was no chance for the case to come up
for trial in the near future, this Court granted permission to the
accused to travel abroad.
15. On a consideration of the above-extracted notification and
the provisions of the Act, it is obvious that there are still lacuna about
the parameters that govern the grant of no objection by the criminal
courts. Though it is for the legislature to fill up the lacuna by
recourse to its rule making power or through proper amendments,
such amendments have unfortunately not been forthcoming. It is
essential that till then there must be some yardstick to govern the
grant of such no objections by criminal courts as otherwise, there is a
possibility of the grant of permission turning into a subjective
satisfaction rather than an objective one.
16. After expressing the inclination of this Court to lay down
parameters for the criminal courts to act upon while granting the no
objection, the counsel for the petitioner Adv. Saju S. Nair and the
Central Government Counsel Adv. Jaisankar V. Nair were heard on
the said issue.
17. A recap of the various decisions of this Court may be
necessary at this stage of the deliberations. In Muhammed v. Union
of India and Others (2018 (4) KHC 945) this Court had held that a
criminal proceeding is pending only when cognizance is taken and in
the absence of a final report filed in court, a criminal case cannot be
treated as pending. It was also held that mere registration of a crime
does not invoke either section 6 or section 10 of the Act and the
police verification report must mention the stage of the crime.
Similarly, in the decision in Jayan V.M. @ Jayasoorya v. Union of
India and Others (2018 KHC 823) this Court had observed while
considering a case of impounding of passport that mere property
disputes or family disputes masquerading as crimes cannot deprive a
person of his or her fundamental right to travel and the passport
officer has to exercise his discretion in evaluating the gravity of the
crime and then decide whether the pending crime must result in
variation, impounding or revocation of the passport or the travel
document. In the decision in Mohamad Shafi v. Regional Passport
Officer (2017 (2) KHC 484) this Court has held that Criminal Court is
vested with ample powers to issue directions for providing passport
for a specific period and the Magistrate can fix the period for
travelling abroad or even issue directions to issue the passport for a
specified period in accordance with the facts and circumstances of
each and every case. In Muhammed v. State of Kerala and
Another (2012 (4) KHC 553) it was held that the gravity of the
offence alleged cannot be the sole basis to decline permission to go
abroad for a short period and the Magistrate can allow the application
to travel abroad by imposing adequate safeguards for securing the
presence of accused for trial. In Akhilesh v. State of Kerala and
Others (2021 (2) KHC 752) it was held that the Court where the case
is presently pending has to decide whether the applicant is entitled to
get a passport as well as the period for which he is entitled to hold
the passport and the court has also to keep in mind the fact that
pendency of a criminal case shall not stand in the way or cause
hindrance to decide the future of an applicant.
18. On an appreciation of the aforesaid decisions, it can be
seen that the courts have been constantly holding that the pendency
of a criminal proceeding is not a bar for obtaining a passport or for
travelling abroad. However, the only requirement in such cases is
that the court where the criminal proceeding is pending, must grant
permission for the period of such travel or the period for which the
passport can be issued . Based upon such permission, the passport
issuing authority can issue the requisite document enabling travel.
19. We must remind ourselves that, we are still governed by
the pristine principle that an accused is presumed innocent unless
and until he is found guilty. The fact that false prosecutions can mar
the career and future of a person is also a factor that may well not be
ignored while considering the grant of permission. This Court cannot
also lose sight of the fact that criminal trials in our Country take ages
to complete, notwithstanding the efforts at reducing delay. Adding to
all these, with the Covid-19 pandemic having halted the continuity of
trials in many trial courts, further delay is a forgone conclusion and to
say the least. Reality being so, the grant of permission by the
Magistrate enabling an accused to travel abroad will be of great
significance, especially since it will be a process of balancing the
fundamental right of a citizen to travel abroad and the need to ensure
the presence of the accused during trial. Many a time, the
consideration results in subjective satisfaction of the Magistrate
rather than the required objective satisfaction. To avoid subjectivity, it
is necessary to lay down the parameters that can govern the grant of
permission for future guidance.
20. The parameters that shall govern the grant of permission
by the criminal courts in the matter of issuance of passports to those
involved in criminal proceedings pending in courts shall be as
follows:
(i) The stage of the criminal proceeding and the duration of
time within which the trial may take place;
(ii) The criminal antecedents and past conduct of the accused;
(iii) The nature and gravity of the crime; offences under
Statutes dealing with acts of terrorism and acts of
smuggling should require a different consideration.
(iv) In heinous crimes, if the court decides to grant
permission,the period for which permission is granted
can be limited;
(v) Chances of the accused fleeing or evading the trial in the
case;
(vi) Mode in which the presence of the accused can be
ensured during trial, including stipulating conditions like
providing the address/ change of address in the country
of residence abroad, either with the Indian Consulate at
the country of residence abroad or with the Court where
the trial is pending.
(vii) Since in cases where time is not fixed by the Magistrate while
granting permission, the Passport authorities are issuing
passports only for one year, the period for which the accused
can be permitted to travel can also be fixed by the Magistrate,
while granting permission.
21. The parameters laid down as above are not exhaustive.
While granting permission, the criminal courts will do well to bear in
mind that the ultimate aim of granting permission is to balance the
competing claims of fundamental right to travel abroad and the need
to ensure the presence of the accused during trial. Other reasonable
safeguards to ensure the presence of the accused during trial can
also be incorporated into the order granting permission, if the
circumstances warrant it.
22. In view of the aforesaid, since the petitioner is unable to
fully satisfy this Court, the stage of crime No. 1480 of 2012 of the
Nedumbassery Police Station, this writ petition is ordered directing
the petitioner to approach the jurisdictional Magistrate and obtain
appropriate orders if the final report has been filed and cognizance
taken. On the other hand, if the final report has not been filed and
cognizance not taken yet, there is no criminal proceeding pending
and the Passport Authority is free to decide the grant of passport
without permission from the Magistrate. To enable the passport
authorities to process the application filed by the petitioner for grant
of a fresh passport, petitioner is given the liberty to file his
explanation to Ext.P7 within ten days from the date of receipt of a
copy of this Judgment and thereafter the second respondent shall
pass appropriate orders within an outer period of four weeks
thereafter.
The writ petition is disposed of with the above observation.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
Corrigendum Dated 30.09.2021
In paragraph 19 of the judgment, after the words "further delay
is a forgone conclusion and to say the least" add the words "an
inevitable conclusion".
Sd/-
BECHU KURIAN THOMAS,
JUDGE
vps
APPENDIX OF WP(C) 15182/2021
PETITIONER'S/S' EXHIBITS
Exhibit P1 TRUE COPY OF THE FLIGHT TICKETS USING
WHICH THE PETITIONER TRAVELLED FROM
SHARJAH TO TRIVANDRUM DATE 11.04.2012.
Exhibit P2 TRUE COPY OF THE LOST CERTIFICATE
OBTAINED FROM THE NEDUMABSSERY POLICE
STATION, DATED 20.11.2012.
Exhibit P3 TRUE COPY OF THE FIR IN CRIME NO.
1480/2012 OF NEDUMBASSERY POLICE
STATION DATED 20.11.2012.
Exhibit P3(a) TRANSLATION OF EXT. P3, FIR IN CRIME
NO. 1480/2012 OF NUDEUMBASSERY POLICE
STATION DATED 20.11.2012.
Exhibit P4 TRUE COPY OF THE EXPLANATION GIVEN BY
THE PETITIONER TO THE SIT RESPONDENT
DATED 12.11.2014.
Exhibit P5 TRUE COPY OF THE LETTER ISEUD BY THE
IST RESPONDENT DATED 08.12.2014.
Exhibit P6 TRUE COPY OF THE ACKNOWLEDGEMENT
RECEIPT ISSUED BY THE IST RESPONDENT
DATED 19.09.2019.
Exhibit P7 TRUE COPY OF THE OBJECTION LETTER
ISSUED BY THE IST RESPONDENT DATED
19.02.2020.
Exhibit P8 TRUE COPY OF CIRCULAR NO.
VI/410/1/5/2019 DATED 10.10.2019.
