Kerala High Court
Muhammed Rafsal vs Union Of India on 26 March, 2025
2025:KER:26159
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947
WP(C) NO. 2723 OF 2025
PETITIONER:
MUHAMMED RAFSAL,
AGED 31 YEARS,
S/O. EBRAHIM KOKKARANIKKAL HASSAN, KOKKARANIKKAL
HOUSE, WEST VENGOLA P.O., PERUMBAVOOR, ERNAKULAM
DISTRICT, PIN - 683556.
BY ADVS.
S.SANAL KUMAR (SR.)
T.J.SEEMA
BHAVANA VELAYUDHAN
DEVAVRATHAN S.
ANU BALAKRISHNAN NAMBIAR
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF EXTERNAL
AFFAIRS, JAWAHAR LAL NEHRU BHAVAN,
OPPOSITE NATIONAL MUSEUM, RAJPATH,
NEW DELHI, PIN - 110001.
2 THE JOINT SECRETARY (PSP) & CHIEF PASSPORT OFFICER,
MINISTRY OF EXTERNAL AFFAIRS, PSP DIVISION, PATIALA
HOUSE, ANNEXE, TILAK MARG, NEW DELHI, PIN - 110001.
3 THE PASSPORT OFFICER,
REGIONAL PASSPORT OFFICE, PANAMPILLY NAGAR, KOCHI,
ERNAKULAM, PIN - 682036.
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4 THE CENTRAL BUREAU OF INVESTIGATION,
REPRESENTED BY THE DIRECTOR, 5-B, CGO COMPLEX,
LODHI ROAD, NEW DELHI, PIN - 110003.
5 ASSISTANT DIRECTOR (NCB),
CENTRAL BUREAU OF INVESTIGATION CGO COMPLEX,
LODHI ROAD, NEW DELHI, PIN - 110003.
6 THE STATE POLICE CHIEF KERALA
STATE POLICE HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN - 695010.
7 INSPECTOR GENERAL OF POLICE (CRIMES), SOUTH ZONE
CBCID HQ, INTERPOL LIAISON OFFICER, STATE POLICE HEAD
QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM,
PIN - 695010.
BY ADV SREELAL WARRIAR
SRI. T.C.KRISHNA, SCGC,
SRI. SREEJITH V.S., GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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'C.R'
JUDGMENT
This writ petition challenges Ext.P10 order of the third
respondent and Ext.P15 order of the second respondent in an appeal
filed against the Ext.P10 order.
The brief facts of the case are as follows:
2. The petitioner is the accused in C.C No.688/2020 of
Judicial First Class Magistrate Court, Chalakkudy arising from Crime
No.502 of 2018 of Mala Police Station as also in C.C. No.246/2022 of
Judicial First Class Magistrate Court-III, North Paravur arising from
Crime No.736/2019 of Varappuzha Police Station. Crime No.502 of
2018 has been registered alleging commission of the offence under
Section 420 r/w Section 34 of the IPC while Crime No.736 of 2019
has been registered under Sections 406 and 420 r/w Section 34 of
the Indian Penal Code. The petitioner applied for the re-issue of his
passport relying on the permissions granted by the Judicial First
Class Magistrate Court, Chalakkudy and the Judicial First Class
Magistrate Court-III, North Paravur, permitting the issue of a
passport to the petitioner. While the Judicial First Class Magistrate
Court, Chalakudy permitted the renewal/re-issue of the passport for
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a period of three years, the Judicial First Class Magistrate-III, North
Paravur permitted the renewal/reissue of the passport for a period of
five years. It appears that there is a red corner notice issued by
Interpol on account of certain proceedings initiated against the
petitioner by the Law Enforcement agencies in Qatar. The Original
Authority as well as the Appellate Authority found that since the
petitioner had not produced any permission to travel abroad from
the Judicial First Class Magistrate Court, Chalakkudy and the
Judicial First Class Magistrate Court-III, North Paravur and on
account of the red corner notice issued against the petitioner, he is
not entitled to a re-issue of the passport.
3. Sri. S. Sanal Kumar, the learned Senior Counsel
appearing for the petitioner on the instructions of Adv. Anu
Balakrishnan Nambiar submits that the permissions granted to the
petitioner by the Judicial First Class Magistrate Court, Chalakudy
and the Judicial First Class Magistrate Court-III, North Paravur
clearly indicate that the petitioner is entitled to the re-issue of his
passport. It is submitted that those orders only require that before
travelling abroad, the petitioner is to obtain further permission from
those Courts. It is submitted that the petitioner will travel abroad
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only after obtaining permission from those Courts and therefore, the
finding that the orders permitting the re-issue of passport are not
sufficient for considering the application for such re-issue may not be
sustainable.
4. The learned Senior Counsel placed reliance on the
judgment of the Supreme Court in Bhavesh Jayanti Lakhani v. State
of Maharashtra and Others; (2009) 9 SCC 551 to contend that the
mere issuance of a red corner notice is not sufficient for the arrest of
a person in India. It is submitted that a perusal of Ext.P17 will
indicate that the petitioner was convicted for a period of one year by
the authorities in Qatar and while a red corner notice has been
issued, no steps for extraditing the petitioner from India have been
taken by the authorities. It is submitted that a reading of the
judgment of the Supreme Court in Bhavesh Jayanti Lakhani (supra)
will indicate that unless proceedings under the Extradition Act, 1962
have been initiated, a person cannot be extradited from India. It is
submitted that Ext.P17 will indicate that the petitioner was convicted
in Qatar on 18.10.2020 and for the past more than 4 years, no steps
have been taken by the Qatar authorities to obtain extradition of the
petitioner from India. It is submitted that in such circumstances, the
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non-consideration of the application filed by the petitioner for the re-
issue of his passport is violative of the fundamental rights of the
petitioner guaranteed under Article 21 of the Constitution of India.
5. The learned Central Government Counsel vehemently
opposes the grant of any relief to the petitioner. It is submitted that
the petitioner is accused in at least two criminal cases in India and
there is a red corner notice issued by the Interpol against the
petitioner. It is submitted that in terms of the provisions contained
in Sections 6(2)(d) and 6(2)(e) of the Passports Act, 1967 (in short
'the 1967 Act') and the provisions of G.S.R 570(E) dated 25.08.1993
issued by the Government of India in the exercise of the power
conferred by Section 22 of the 1967 Act indicate that the petitioner is
not entitled to the re-issue of the passport. It is submitted that the
provisions of G.S.R 570(E) clearly indicate that the petitioner must
obtain permission from the Criminal Court where the criminal case
against him is pending to travel abroad and a perusal of Exts.P1 and
P2 orders will indicate that the petitioner has not been granted such
permission to travel abroad though there is a permission granted to
apply for and obtain a passport with short validity. It is submitted
that the provisions of Section 6(2)(d) of the 1967 Act indicate that
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when a red corner notice is issued to the petitioner and when the
petitioner has been evading legal process in a country having friendly
relationships with India, the petitioner cannot be issued with a
passport.
6. Having heard the learned Senior Counsel appearing for
the petitioner and the learned Central Government Counsel, I am of
the view that the petitioner is entitled to a direction to the competent
among the respondents to consider the application of the petitioner
for re-issue of passport. The orders obtained by the petitioner from
the Judicial First Class Magistrate Court, Chalakkudy and the
Judicial First Class Magistrate Court - III, North Paravur indicate
that both the Courts have granted permission for the issue of a
passport to the petitioner though both Courts have clearly made it a
condition that the petitioner shall obtain permission of the Court
before traveling abroad. Section 6(2)(f) of the 1967 Act reads thus:-
"6. Refusal of passports, travel documents. etc-
(1)....
(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 subsection (2) of section 5 on any one or
more of the following grounds, and on no other ground,
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namely:--
(a).......(e)......
(f) that proceedings in respect of an offence alleged to
have been committed by the applicant are pending before
a criminal court in India;
........"
However, the Government of India has, in the exercise of power
under Section 22 of the 1967 Act issued G.S.R 570(E) dated
25.08.1993 which to the extent relevant reads thus:-
"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 exempt 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
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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;........"
Therefore, as far as the Passport Authority is concerned, the fact that
Exts.P1 and P2 orders do not specifically grant permission to the
petitioner to travel abroad need not be a reason to deny the re-issue
of the passport, especially when the petitioner has undertaken that
he will not travel abroad without obtaining permission from the
Courts in question.
7. Then the only question to be considered is whether the
red corner notice issued to the petitioner will prevent the re-issue of
a passport to the petitioner. I am of the view that in the light of the
law laid down by the Supreme Court in Bhavesh Jayanti Lakhani
(supra), the mere fact that a red corner notice is pending against a
citizen of India is no ground to deny passport services to him. The
relevant portions of the judgment in Bhavesh Jayanti Lakhani
(supra) reads thus:
"39. It is beyond any doubt or dispute that no request for
extradition has been received by the Government of India.
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It could act only when a request is received. It is accepted
at the Bar that a red corner notice by itself cannot be a
basis of arrest or transfer of an Indian citizen to a foreign
jurisdiction. There is furthermore no dispute that the Act
cannot be bypassed in red corner cases concerning Indian
citizens. Hence, the Extradition Treaty is subject to the
provisions of the Act.
40-63 ............
64. In fact, Interpol's "red notices" often function as de
facto international arrest warrants and countries issue
warrants immediately upon receipt of such a notice.
However, they do so with the understanding that a
request for extradition with supporting evidence will
follow the red notice, without delay. The suspect must
then go through the standard extradition process. The
bottom line is that "warrants to arrest suspects must have
legal authority in the jurisdiction where the suspect is
found" and Interpol red notices do not have such
authority. They are primarily a means of facilitating
communication between police agencies and the success
of the Interpol system still depends entirely upon
voluntary cooperation. They, however, do not entirely lack
external effects.
65-95 ........
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96. Extradition of a fugitive criminal from India to any
other foreign country, irrespective of the fact as to
whether any treaty has been entered into or with that
country, is within the exclusive domain of the Central
Government. The extradition of a person from India to
any other foreign country is covered by the Parliament
Act, namely, the Act. Keeping in view the Constitution of
Interpol vis-à-vis the resolutions adopted by CBI from
time to time, although a red corner notice per se does not
give status of a warrant of arrest by a competent court, it
is merely a request of the issuing authority to keep
surveillance on him and provisionally or finally arrest the
wanted person for extradition."
The learned Senior Counsel for the petitioner is right in contending
that despite the fact that the petitioner was convicted in Qatar as
early as in the year 2020, no steps have been taken to extradite the
petitioner from India even after the passage of more than four years
after the conviction. In such circumstances, the denial of passport
services to the petitioner would amount to a negation of the right of
the petitioner to travel abroad, which has been held to be a facet of
Article 21 of the Constitution of India. The Constitution Bench in
Satwant Singh Sawhney v. D. Ramarathnam; AIR 1967 SC 1836
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referred to the Full Bench judgment of this Court in Francis
Manjooran v. Government of India, Ministry of External Affairs, New
Delhi, ILR (1965) 2 Kerala 663 and held:-
"28. A full Bench of the Kerala High Court in Francis
Manjooran v. Government of India, Ministry of External
Affairs, New Delhi held that the expression "personal
liberty" took in the right to travel. M.S. Menon, C.J.,
observed:-
"The right to travel, except to the extent
provided in Article 19(1) (d), is within the ambit
of the expression "personal liberty" as used in
Article 21...."
Raman Nayar, J., held that the right of free movement
whether within the country or across its frontiers, either
in going out or in coming in, was a personal liberty within
the meaning of Article 21. Gopalan Nambiyar, J.,
observed that the right to travel beyond India, or at least
to cross its frontiers was within the purview of Article 21
and that personal liberty in Article 21 was not intended to
bear the narrow interpretation of freedom from physical
restraint."
In Maneka Gandhi v. Union of India; (1978) 1 SCC 248 it was held:-
"48. In Satwant Singh Sawhney v. D. Ramarathnam,
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Assistant Passport Officer Government of India, New
Delhi this Court ruled by majority that the expression
"personal liberty" which occurs in Article 21 of the
Constitution includes the right to travel abroad and that
no person can be deprived of that right except according
to procedure established by law."
In my view, in the facts and circumstances of this case, the denial of
passport services to the petitioner because a red corner notice has
been issued would be tantamount to a deprivation of the right of
personal liberty enshrined in Article 21 of the Constitution of India.
8. Therefore, this writ petition is allowed. Exts.P10 and P15
orders are quashed. The 3rd respondent is directed to process the
application filed by the petitioner for the re-issue of his passport in
accordance with the law and subject to compliance with usual
formalities. It is made clear that the petitioner shall not leave India
without obtaining permission from the Judicial First Class
Magistrate Court, Chalakkudy and the Judicial First Class Magistrate
Court - III, North Paravur. It is also made clear that since Ext.P1
permits the re-issuance of a passport for five years and Ext.P2 order
permits the issuance of a passport only for three years, the petitioner
is entitled to a passport only for a period of three years and not for a
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period of five years.
The writ petition is ordered accordingly.
Sd/-
GOPINATH P.
JUDGE
scl/DK
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APPENDIX OF WP(C) 2723/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER DATED
21.02.2024, OF THE JFCM-III NORTH
PARAVUR IN CRL.MP.869/2024 IN
Exhibit P2 A TRUE COPY OF THE ORDER DATED
02.08.2024 IN CRLMP.NO.6124/2024 IN
C.C.NO.688/2020 BY THE JFCM CHALAKKUDY
Exhibit P3 A TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WPC.NO.23948/2024
DATED 14.10.2024
Exhibit P4 A TRUE COPY OF THE EMAIL SENT BY THE
PASSPORT AUTHORITIES TO THE PETITIONER
DATED 25.10.2024
Exhibit P5 A TRUE COPY OF THE REPLY SUBMITTED BY
THE PETITIONER THROUGH EMAIL DATED
26.10.2024
Exhibit P6 A TRUE COPY OF THE SHOW-CAUSE NOTICE
ISSUED TO THE PETITIONER FROM THE
REGIONAL PASSPORT OFFICE, COCHIN, WITH
LETTER REF.NO.SCN/319831551/24 DATED
25.10.2024
Exhibit P7 A TRUE COPY OF THE REPLY SUBMITTED BY
THE PETITIONER TO THE SHOW-CAUSE
NOTICE, DATED 29.10.2024
Exhibit P8 A TRUE COPY OF THE EMAIL DATED
30.10.2024 SENT TO THE PETITIONER BY
THE PASSPORT AUTHORITIES
Exhibit P9 A TRUE COPY OF THE EMAIL SENT BY THE
PETITIONER TO THE PASSPORT AUTHORITIES
DATED 30.10.2024
Exhibit P10 A TRUE COPY OF THE ORDER ISSUED BY THE
3RD RESPONDENT DATED 30.10.2024 ALONG
WITH COVERING LETTER REF. NO:
REN/319867673/24 DATED 30.10.2024
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Exhibit P11 A TRUE COPY OF THE LIST OF SPECIFIC
OFFENCES FOR WHICH RED NOTICES MAY NOT
BE ISSUED DOWNLOADED FROM THE INTERPOL
WEBSITE
Exhibit P12 TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT
DATED 06.11.2024
Exhibit P13 A TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WRIT PETITION
NO.43039/2024 DATED 06.12.2024
Exhibit P14 A TRUE COPY OF THE ARGUMENT NOTE
SUBMITTED BY THE PETITIONER DATED
16.12.2024 BEFORE THE 2ND RESPONDENT
Exhibit P15 A TRUE COPY OF THE ORDER IN APPEAL
PASSED BY THE 2ND RESPONDENT DATED
13.01.2025
Exhibit P16 A TRUE COPY OF THE PAGES OF THE
PETITIONER'S PASSPORT CARRYING STAMPS
EVIDENCING HIS TRAVELS OUTSIDE INDIA
AFTER 2022
Exhibit P17 A TRUE COPY OF THE RED NOTICE ISSUED BY
THE INTERPOL DATED 01.03.2022
