Ashish Singh Chouhan vs Union Of India
2022 Latest Caselaw 16125 MP

                                                      W.P. No.27436/2022
                             1


IN THE HIGH COURT OF MADHYA PRADESH
           AT JABALPUR
                        BEFORE
         HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                   DHARMADHIKARI
             ON THE 6th OF DECEMBER, 2022
                 WRIT PETITION No. 27436 of 2022

BETWEEN:-

ASHISH SINGH CHOUHAN S/O SHRI MUKESH
SINGH CHOUHAN, AGED ABOUT 29 YEARS,
OCCUPATION: BUSINESS R/O ISHWAR NAGAR
BHOPAL (MADHYA PRADESH)
                                                      .....PETITIONER
(BY SHRI UMESH TRIVEDI- ADVOCATE )

AND

1.    UNION   OF  INDIA THROUGH  THE
      SECRETARY MINISTRY OF EXTERNAL
      AFFAIRS SOUTH BLOCK NEW DELHI
      (DELHI)

2.    REGIONAL      PASSPORT     OFFICER,
      PASSPORT OFFICE ISBT MAIN BUILDING,
      MEZZANINE FLOOR, INFRONT OF SANCHI
      DUGDH SANGH, HOSHANGABAD ROAD,
      HABIBGANJ, BHOPAL (MADHYA PRADESH)
                                                   .....RESPONDENTS
(BY SHRI PUSHPENDRA YADAV- ASSISTANT SOLICITOR GENERAL )




      This petition coming on for admission this day, the court passed

the following:
                                                           W.P. No.27436/2022
                               2




                                ORDER

In this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following relief:

"(I) permit the petitioner to obtain passport, travel documents to go to USA for taking medical treatment and saving the life of his father Shri Mukesh Singh Chouhan;

(II) direct the respondents to issue passport and travel documents to the petitioner;

(III) any other writ or writs, direction or directions, order or orders which this Hon'ble Court deems fit and proper may also kindly be passed in the facts and circumstances of the case;

(IV) award the cost of this petition."

2. Learned counsel for the petitioner prays for a direction to respondent No.2 to issue the passport for visiting USA to meet out medical emergency suffered by the father of the petitioner. The petitioner has no option other than to approach this Court for grant of necessary permission/ passport to travel to USA. In support of his contention, he relied on the judgment of the Apex Court in the case of Ashok Kumar Sharma Vs. Regional Passport Officer and others as reported in (2019) SCC Online DEL 6480.

3. On the other hand, learned Assistant Solicitor General for Union of India opposed the prayer and submitted that the petitioner is a convicted person and if he is permitted to go outside the country, there W.P. No.27436/2022

is every possibility of his absconsion, therefore, he may not be permitted to go outside India. With the aforesaid submission, he prays for dismissal of the writ petition.

4. Heard the learned counsel for the parties.

5. Under the Passport Act, 1967 (hereinafter shall be referred to as "the Act"), the relevant provisions are provided under clause (e) and

(f) of sub Section 2 of Section 6 of the Act. The relevant provisions are reproduced below.

"6. Refusal of passports, travel documents, etc.-

(1).xxxxxxxxx-xxxxxxxxx (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, namely: -

                                    (a) xxxx       xxxx
                                    (b) xxxx       xxxx
                                    (c) xxxx       xxxx
                                    (d) xxxx       xxxx

(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:

W.P. No.27436/2022

(f) that proceedings in respect of an offence alleged to have committed by the applicant are pending before a criminal court in India;"

6. From bare reading of the aforesaid provision, it appears that clause (e) and (f) of Section 6(2) of the Act refer to different situations. Clause (f) of sub Section 2 of Section 6 of the Act is applicable only in case where criminal proceedings are pending in respect of an allegation of an offence. Clearly, the said clause is inapplicable where the criminal proceedings have been completed and resulted in a conviction and the offence alleged to have been committed has been established. Clause (e) of Section 6 (2) of the Act relates to a case where an applicant has been convicted of an offence involving moral turpitude and has been sentenced in respect thereof to an imprisonment for not less than two years. It is also relevant to mention that the Clause (e) is applicable only for a period of five years after such conviction.

7. Under Section 22 of the Act, the Central Government has the power to grant exemption from the application of provisions of Passports Act. Section 22 of the Act reads as under:-

"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 there under; and W.P. No.27436/2022

(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."

8. Vide notification dated 25.08.1993 - GSR 570 (E), the Central Government has exercised the aforesaid powers and issued a notification. According to petitioner, the said notification is applicable and the petitioner would be entitled to a passport provided an NOC is issued by the concerned Court before which criminal proceedings against the petitioner is pending. The said notification is set out below:-

"Ministry of External Affairs Notification New Delhi, the 25thAugust, 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 14thApril 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:-

W.P. No.27436/2022

(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 issue in terms of (a) (ii) and

(a)(iii) above can be further renewed for one year at a time, provided the applicant has not traveled abroad for the period sanctioned by the court and provided further that, in the meantime. The order of the court is not canceled 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 W.P. No.27436/2022

before it at any time during the continuance in force of the passport so issued."

9. Reading of the said notification indicates that its scope is limited to exempt persons from the operation of Clause (f) of subsection (2) of Section 6 of the Passports Act. The opening paragraph of the said notification makes it clear that it only exempts citizens against whom proceedings, in respect of an offence alleged to have been committed by them, are pending before a Criminal Court in India.

10. In the present case, the petitioner has been convicted under Sections 324/34 and 307 of IPC and sentenced to undergo 5 months and 3 years of R.I. Although he has preferred an appeal against his conviction but the provision of Passport Act under Section 6(e) says that the passport authority shall refuse an application for issuing passport, if the petitioner has been convicted by the Court for any offence involving moral turpitude and he has been sentenced to imprisonment for not less than two years.

11. The notification dated 25.08.1993, indicates that it comes in effect in relation to provision of clause (f) of sub Section 2 of Section 6, whereas the case of present petitioner falls under the purview of clause (e) of sub Section 2 of Section 6 of the Passport Act. Therefore, the notification dated 25.08.1993 has no application in this case.

12. From perusal of the record, it is seen that the petitioner has never approached the Passport Authority for issuance of the Passport, therefore, in view of the aforesaid provisions of law, the petitioner must approach the authorities first by filing appropriate application. In W.P. No.27436/2022

such circumstances, if the petitioner approaches the respondent No.2 by filing application, the same may be decided as expeditiously as possible in accordance with law in force and pass a reasoned and speaking order.

With the aforesaid, the instant writ petition stands disposed of.

(SUSHRUT ARVIND DHARMADHIKARI) JUDGE

Shanu

Digitally signed by SHANU RAIKWAR Date: 2022.12.07 14:13:42 +05'30'