Madras High Court
Mohan C.Lazarus vs The Regional Passport Officer on 8 January, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.01.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.15829 of 2020
and
W.M.P.(MD)Nos.13260 & 13261 of 2020
Mohan C.Lazarus ... Petitioner
Vs.
The Regional Passport Officer,
Regional Passport Office,
Bharathi Ula Veethi,
Race Course Road,
Madurai – 625 002. ... Respondent
Prayer: Writ petition is filed under Article 226 of the
Constitution of India, to issue Writ of Certiorarified Mandamus,
calling for the records relating to the impugned proceedings
bearing No.2000010_cpc_MDU dated 11.08.2020 issued by the
respondent and quash the same and consequently direct the
respondent to re-issue the passport of the petitioner bearing
No.Z5253543 on File No.MD2072792315920 and to pass such
further or other orders as this Court may deem fit and proper in
the circumstances of the case and thus render justice.
For Petitioner : Mr.Isaac Mohanlal, Senior Counsel
for Mr.K.Samidurai
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1/12
2
For Respondent : Ms.L.Victoria Gowri,
Assistant Solicitor General of India
for Madurai Bench
ORDER
The writ petitioner is the founder of Jesus Redeems
Ministry and a well known evangelist. The petitioner applied for
re-issuance of passport, because, his old one got damaged. The
respondent called for police verification report. It then came to
be known that the petitioner was involved in as many as four
criminal cases. Therefore, the respondent vide notice dated
05.02.2020 called upon the petitioner to provide suitable
explanation as to why the petitioner suppressed material
information in his application. The petitioner vide explanation
dated 11.02.2020 informed the respondent that further
proceedings in all the cases have been stayed by the High Court.
Not satisfied with the said explanation, the respondent passed
the impugned order dated 11.08.2020 declining to process the
petitioner's application further. Questioning the same, this writ
petition came to be filed.
2.The learned Senior Counsel appearing for the
petitioner submitted that the respondent erred in not properly
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considering the explanation furnished by the petitioner. Though
four criminal cases have been registered against the petitioner,
three are pending at the FIR stage and therefore, they cannot be
a bar for considering the petitioner's application. Of course,
one criminal case has been taken on file by the jurisdictional
criminal court but further proceedings therein have been stayed.
Therefore, pendency of one case against the petitioner in a
criminal court cannot operate to his prejudice. He laid particular
emphasis on the nature of the right to travel abroad. He
therefore called upon this Court to set aside the impugned order
and allow this writ petition.
3.Per contra, the learned Assistant Solicitor General of
India for the Madurai Bench appearing for the respondent
contended that the impugned order is well founded and that it
does not call for any interference.
4.Before I consider the rival contentions, I must remark
that since we are in the age of social media, certain events tend
to come to our notice on their own. I myself have seen a video
in which the writ petitioner is seen exhorting the members of the
Christian community to conduct prayer meetings so that
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Shri.Narendra Modi will not be re-elected to power. He has also
made highly derogatory remarks against Hinduism. He thinks
that the State of Tamil nadu is in the grip of Satan and that it is
high time it is redeemed. It is not for this Court to opine as to
whether a true religious personage will utter such remarks. My
role is to examine the correctness of the impugned order and to
see if any relief can be granted to the petitioner.
5.It is not in dispute that cases were registered against
the petitioner before various police stations. Crime No.223 of
2018 registered on the file of the Government Hospital Police
Station, Erode, culminated in a final report. Cognizance was
also taken in STC No.1493 of 2018 on the file of the Judicial
Magistrate No.II, Erode. Therefore, it can be stated that
proceedings in respect of an offence alleged to have been
committed by the applicant are pending before a criminal court
in India. Of course, the proceedings in STC No.1493 of 2018 on
the file of the Judicial Magistrate No.II, Erode have been stayed
in Crl OP No.2733 of 2019. But the fact remains that the quash
petition is still pending and has not been disposed of.
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6.Section 6(2)(f) of the Indian Passports Act, 1967 reads
as follows :
“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).....
(b)....
(c)...
(d)...
(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.”
Section 6(2) employs the expression “shall refuse”. Of course, in
the overall context, it implies that refusal to issue passport or
travel document must be predicated only on the grounds set out
in Section 6(2) and not on any other ground. It can also mean
that if the case of the applicant falls within grounds (a) to (i), the
issuing authority is obliged to say “no” to the applicant. It
appears that the hands of the passport authority is tied. This is
because while dealing with the power of the passport authority
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to vary, impound or revoke passports and travel documents,
Section 10 (3) (e) of the Act is couched in discretionary terms.
Section 10(3)(e) reads as follows :
“The passport authority may
impound or cause to be impounded or revoke
a passport or travel document,--
(a).....
(b)....
(c)...
(d)...
(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”.
Since the mandatory character of Section 6(2) can cause
hardship, the Central Government issued the following
Notification dated 25.08.1993, for regulating the exercise of
power by the Passport Authority under Section 6(2 (f):
“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
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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
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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.”
This notification was interpreted by a learned Judge of this
Court (The Hon'ble Mr.Justice P.N.Prakash) vide order dated
21.04.2017 in WP(MD)No.7056 of 2017 (N.Chandrababu vs. the
Sub Inspector of Police). The Hon'ble Judge in the said
decision held that the expression 'concerned Court' will mean
the Court before whom the person is facing the prosecution. If a
petition for quashing the criminal proceedings has been filed
under Section 482 of Cr.Pc before the High Court and interim
stay has been granted, then the 'concerned Court' would be not
the jurisdictional criminal court where the applicant is facing
trial but the High Court.
7.This being the legal position, the petitioner cannot be
heard to contend that merely because the criminal proceedings
pending before the jurisdictional criminal court have been stayed
in a quash petition, Section 6(2)(f) of the Act will cease to
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operate. In the light of the aforesaid decision in WP(MD)No.
7056 of 2017, a specific order may have to be obtained from the
High Court. The petitioner may have to file a miscellaneous
petition in the pending quash petition. However, considering the
special facts and circumstances, I deem it fit and appropriate to
go into the issue in this writ petition itself.
8.An applicant is said to commit an offence under
Section 12 of the Passports Act, 1967 if he suppresses any
material information with a view to obtain a passport. He is not
obliged to make any disclosure as regards those cases that are
pending at the FIR stage. But, he is bound to give the details if
the criminal case had been taken on file by the jurisdictional
criminal court. In the case on hand, out of the four criminal
cases, one case had already been taken on file by the Judicial
Magistrate No.II, Erode in STC No.1493 of 2018. It was certainly
a material information and its suppression prima facie attracts
Section 12(1)(b) of the Passports Act, 1967. When the act of
the applicant prima facie amounted to an offence, the
respondent was justified in rejecting the petitioner's request for
issuance of passport. Therefore, the order impugned in this writ
petition cannot be faulted. I uphold its validity to the extent it
rejected the petitioner's application.
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9.But that cannot be the end of the matter. Right to
travel abroad is implicit in Article 21 of the Constitution of India
as held in Satwant Singh Sawhney vs. D. Ramarathnam
and Ors (AIR 1967 SC 1836). This proposition was affirmed
with greater force in Maneka Gandhi vs. Union of India (UOI)
and Ors, (1978) 1 SCC 248. The right to go abroad is in area
falling within the right to privacy as held in Aadhar judgment.
The Hon'ble Supreme Court in its recent decision reported in
(2020) 10 SCC 77 (Parvez Noordin Lokhandwalla vs. State of
Maharashtra and Ors.) observed that when a court is called
upon to decide whether the applicant should be permitted to
travel abroad, in evaluating the issue, the court must have
regard to the nature of allegations, conduct of the applicant and
above all, the need to ensure that he does not pose a risk of
evading the prosecution.
10.Applying the aforesaid yardstick, I come to the
conclusion that the petitioner does not represent flight-risk. He
has visited foreign countries on innumerable occasions and he
had never overstayed. He had not applied to any foreign country
seeking residential permit. It is obvious that his roots are very
much here. He is definitely not likely to leave India, though the
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complainants in the criminal cases would definitely wish he
does. Therefore, denial of the right to travel abroad certainly
infringes his fundamental right guaranteed under Article 21 of
the Constitution of India. More than anything else, the
petitioner did not ask for renewal of passport. His passport
remains valid upto 02.04.2029. It was issued on 03.04.2019.
Though interim order was obtained in Crl OP No.2733 of 2019
on 01.02.2019, the petitioner's original application also appears
to be vitiated by suppression of material information. Yet, the
passport authority on their own did not choose to invoke their
power under Section 10 of the Act. It was only the petitioner
who went to the authority seeking re-issuance of passport as
the old one got damaged. Therefore, even while sustaining the
impugned order, I permit the writ petitioner to submit a fresh
application to the respondent seeking issuance of passport.
Subject to the petitioner fulfilling other formalities and in the
absence of any change in circumstance, the respondent shall re-
issue passport to the petitioner within a period of three weeks
from the date of submission of fresh application.
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11.The writ petition is disposed of on these terms. No
costs. Consequently, connected miscellaneous petitions are
closed.
08.01.2021
Index : Yes / No
Internet : Yes/ No
skm
Note: In view of the present lock down owing
to COVID-19 pandemic, a web copy of the
order may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant
concerned.
To
The Regional Passport Officer,
Regional Passport Office,
Bharathi Ula Veethi,
Race Course Road,
Madurai – 625 002.
http://www.judis.nic.in
G.R.SWAMINATHAN, J.
skm
W.P.(MD)No.15829 of 2020
08.01.2021
http://www.judis.nic.in
