Madras High Court
P.Vadivel vs The Chief Immigration Officer on 7 October, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.10.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
WP(MD)Nos.16700 and 16701 of 2021
and
WMP(MD)Nos.13600 and 13603 of 2021
P.Vadivel : Petitioner in WP(MD)No.16700 of 2021
P.Rajasekarapandian : Petitioner in WP(MD)No.16701 of 2021
Vs.
1.The Chief Immigration Officer,
Immigration Department,
Madurai Airport,
Madurai.
2.The Superintendent of Police,
O/o.The Superintendent of Police,
Ramanathapuram District.
3.The Inspector of Police,
Kadaladi Police Station,
Ramanathapuram District. : Respondents in both cases
Prayer: Writ Petitions have been filed under Article 226 of
the Constitution of India, to issue a writ of Mandamus, directing the
2nd respondent to withdraw or cancel the lookout circular issued
against the petitioner to the 1st respondent forthwith, by
considering the petitioner's representation, dated 04.09.2021.
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For Petitioners : Mr.S.M.A.Jinnah
For Respondents : Mr.K.Sanjay Gandhi
Government Advocate (Crl. Side)
COMMON ORDER
Both the writ petitions are filed seeking a common order of
cancelling the lookout notice that has been issued against these
petitioners, by considering their representation, dated 04.09.2021.
2.When the learned counsel appearing for the petitioners
arguing that even though the petitioners have been arrayed as
accused in Crime No.260 of 2020, would submit that they have
been granted bail and they were regularly complying with the bail
conditions. All of a sudden, a look notice has been issued against
them and they are prevented from pursing job in abroad.
According him, it is clear a violation of Article 21 of the
Constitution of India. For that purpose, he relied upon number of
judgments stating that lookout notice can be issued only by
following proper procedures and before issuing lookout notice, the
petitioners were not served with show cause notice.
3.In respect of the cases, which are pending before the
criminal court for the purpose of getting passport renewal, etc. the
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Ministry of External Affairs, Government of India, has issued the
Official Memorandum, extracted hereunder:-
No.VI/401/1/5/2019
Government of India
Ministry of External Affairs
PSP Division
Patiala House Annexe, Tilak Margu
New Delhi, the 10th October 2019
OFFICE MEMORANDUM
Subject: Issue of passports to applicants against
whom criminal case are pending before a court of
law in India.
Reference is invited to Notification No. GSR
570 (E) dated 25.08.1993 regarding issuance of
passports to applicants who have criminal
proceedings pending against them and whose
applications would attract the provisions of clauses
(f) of sub-section (2) of Section 6 of the Passports
Act, 1967.
2. GSR 570 (E) dated 25.08.1993 is reproduced
below for reference:
GRS 570 (E) – In exercise of the powers
conferred by clause (a) of Section 22 of the
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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 nad 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, subhect 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
fo one year;
(iii) if such order gives permission to travel
abroad for a period less than one year, but does not
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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 cane 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 ti at any time during the
continuance in force of the passport so issued.
3.It may be noted that applicants may be
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refused passports only on grounds mentioned under
Section 6 (2) of the passports Act, 1967. Section 6
(2) (f) of the Act states that the passport authority
shall refuse to issue a passport or travel document
to an applicant on the ground that proceedings in
respect of an offence alleged to have been
committed by the applicant are pending before a
criminal court in India. GSR 570 (E) dated
25.08.1993 was introduced to give relief to such
applicants against whom criminal proceedings are
pending before nay Court of law in India but who
may need to travel abroad for some urgent
business. With an undertaking under GSR 570(E)
and an order from the Court, an applicant could be
issued a short validity passport of one year validity
of for the period specified by the Court.
4.It has been noticed that there are an
increasing number of references being received
regarding passport applications attracting Section
6 (2) (f). It has also been brought to Ministry's
notice that there are a number of complex issues
involved while processing such applications.
During the proceedings in a recent court case, the
Hon'ble High Court of Delhi in W.P.(CRL.)No.
2844/2018/CRL.M.A.48674/2018 has directed that
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guidelines be issued by the Ministry reiterating the
procedure for processing of such applications and
emphasizing that such applications need to be
processed with due care and diligence.
5.In view of the above, the following
instructions may be adopted while processing the
passport applications in respect of those applicants
who may have criminal proceedings pending before
a criminal court in India:
(i) The provisions of GSR 570 (E) may be
strictly applied in all case. GSR 570 (E) is a
statutory notification and hence, forms part of the
Rules. It is to be noted that as per Section 5 (2) of
the Passposrts Act, 1967, the passport authority
shall be order in writing take a decision whether to
issue or refuse a passport, after making such
inquiry, if any, as it may consider necessary.
Moreover, Section 7 of the Passports Act, provides
that a passport or travel document may be issued
for a shorter period than the prescribed period if
the passport authority, for reasons to be
communicated in writing to the applicant, considers
in any case that the passport or travel document
should be issued for a shorter period. Rule 12 of the
Passport Rules, 1980 only states that an ordinary
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passport shall be in force for a period of 10 years
which implies that an ordinary passport cannot be
issued beyond a period of 10 years.
(ii) Whenever an applicant is submitting a
'No Objection Certificate' (NOC) from a Court of
law in India, the applicant should be advised that
undertaking as per GSR 570(E) should be complete
in all respects and should mention all the pending
criminal cases against the applicant. The
undertaking will have a not clearly stating that if
any false or incomplete information is submitted by
an applicant, then his passport application is liable
to be rejected.
(iii) Extant instructions clearly lay down that
such applications should be processed on pre-
Police Verification (PV) mode. “Pre-PV” would be
mandatory in all cases of applications submitted
with GSR 570(E) to ensure that the undertaking
submitted by the applicant is properly matched with
the criminal cases mentioned in the Police
Verification Report (PVR). Hence, such
applications should not be accepted under Tatkaal
nor such applications be moved to “post-PV” mode
or “No-PV” mode without proper justification and
approval to be recorded in writing.
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(iv)If an undertaking is incomplete or
misleading and the applicant is found to have
suppressed details of other criminal cases against
the applicant, a Show Cause Notice should be
issued to the applicant and action initiated against
that applicant as per provisions of Section 12 of the
Passports Act, 1967. If information that an
applicant has obtained a passport by making a
false submission or by suppressing material facts
comes to light after the passport has been issued,
the passport may be impounded or revoked as per
provision of Section 10 (3) (b) of the Passports Act,
1967 after following the due procedure.
(v)In case where the first police verification
(PV) is 'Adverse', secondary police verification may
be generated. While a secondary PV is generated, it
should be accompanied by a detailed letter seeking
clarification regarding the pending criminal cases
against the applicant and the status of these cases.
Apart from generating secondary PVR, the passport
officers may, if considered necessary, call for
discreet enquiry through the police authorities by
sending the court order submitted by the applicant
or even seek verification from other government
agencies/departments, as the case may be.
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(vi) In case where the secondary Police
Verification is also 'Adverse', it may be examined
whether the details brought out in the police report
match the undertaking submitted by the applicant.
It may be noted that mere filing of FIRs and cases
under investigation do not come under the purview
of Section 6(2)(f) and that criminal proceedings
would only be considered pending against an
applicant if a case has been registered before any
Court of law and the court has taken cognizance of
the same.
(vii) If the details given in the police report
and the undertaking submitted by the applicant are
matching, then the 'No Objection Certificate' issued
by a Court of law submitted by the applicant would
take precedence over any 'Adverse' report
submitted by the police. In such cases, the 'Adverse'
report may be overruled with the written approval
of the Passport Officer.
(viii) If the details given in the PVR and the
undertaking submitted by the applicant are at
variance, then a notice may be issued to the
applicant calling for clarification and advising the
applicant to submit details of all pending criminal
cases as well as to submit a revised No Objection
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Certificate (NOC).
(ix) If it is brought to the notice of the
authority that an applicant has criminal
proceedings arrayed against applicant before
several courts of law, then the applicant may be
advised to get NOC from all the concerned court
(s). Normally, the Court Order would make a
mention of the cases pending against the applicant
as well as the prayer made by the applicant. This
may be examined along with the undertaking
submitted by the applicant and complaints or other
court orders, if any, that have been received against
the applicant.
(x) It may noted that GSR 570(E) only
exempts and applicant from the operation of
Section 6 (2)(f) and none of the other sub-sections
of Section 6(2) of the Passports Act, 1967.
(xi) A revised Undertaking under GSR 570(E)
is attached at Annexure 'A'.
(xii) Passport Officers may issue an internal
SOP along the above lines so that there is no
confusion in handling of applications that would
attract provisions of section 6(2)(f) of the Passports
Act, 0967.
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6.The above instructions may be noted for
strict compliance with immediate effect.
Annexure 'A'
UNDERTAKING
(to be submitted on plain paper as per provisions of GSR-570(E) dated
25.08.1993)
I am applying/have applied for passport with the following details:-
(a)Name :..........................................
(b)Date of Birth :.........................................
(c)Father's Name :.........................................
(d)Mother's Name :.........................................
(e)Present Address :..........................................
(f)File No./ARN No. :................................ Date:...............
2.The Criminal case(s) with following details is/are pending against me:
(if more than one case is pending, details of all cases may be provided.
Additional sheet giving complete information may be attached)
(a)Case No. :............................................
(b)Name of Court :............................................
(c)Details of Investigating Agency
(Please provide details of Police station
Investigating Officer, etc.) :.............................................
(d)Last date of hearing :..............................................
(e)Next date of hearing :.............................................
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3. I hereby undertake that I shall, if required by the Court concerned, appear
before it at any time during the continuance in force of the passport so
issued.
4. I am aware that it is an offence under the Passports Act, 1967 to furnish any
false information or to suppress any material information with a view to
obtaining a passport or any other travel document.
5. The above information given by me in this undertaking and enclosures is
true and I am solely responsible for its accuracy.
(Signature of the Passport applicant)
Name.............................................
Mobile No....................................
Date:................
Place:...............
4.So the learned counsel appearing for the petitioners would
submit that this circular will apply only in cases where charge
sheet has been filed and the accused persons are facing trial. But
these cases are concerned, only they are in the investigation stage
and final report has not been filed so far. So, this circular will not
apply the following earlier order, which has been passed by this
court. So, the lookout notice must be cancelled and recalled.
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5.No doubt that on the previous occasion, even though this
court has passed such an order, recalling the lookout notice, but
frequent violation of the bail conditions was brought to notice of
this court by the persons, who are seeking job, education, and
other avocations in abroad or foreign countries. When this was
brought to the notice of this court, I was of the considered view
that the above said circular must also be made applicable to the
facts of those cases, where investigating is pending.
6.In a similar matter, this court has made an observation that
purpose of avoiding future problem, not only to the accused
persons, but also to the investigating agency, the petitioners, who
seek permission to visit abroad or for any reason, must get proper
permission from the concerned jurisdictional Magistrate Court,
where FIR is pending. Because the accused persons are bailed to
the particular jurisdictional Court. So the same principle was
also adopted subsequently also. So, the contention on the
part of the petitioners that the earlier orders must be
followed by this court may not be acceptable for the
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reasons stated above. On the permission being granted by the
competent jurisdictional Court, the lookout notice that has been
issued against the petitioners will automatically deemed to have
been cancelled, inoperative and ineffective.
7.So these petitions are allowed with the following
directions:-
(1)Within 15 days from the date of
receipt of a copy of this order, the
petitioners must file appropriate
permission petitions before the
concerned jurisdictional Magistrate
Court, where FIR is pending, seeking
permission by setting out the facts and
circumstances and necessity of their
purpose of visiting abroad by producing
proper documents;
(2)On such petitions being filed, the
concerned jurisdictional Magistrate Court
is hereby directed to consider the same,
on merits and pass orders within 15 days
thereafter;
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(3)At the time of passing orders, the
concerned jurisdictional Magistrate Court
may also take into consideration the right
of the petitioners to go abroad to pursue
their avocation, which is a fundamental
right and the Court can also impose
conditions for ensuring their appearance
at the time of investigation and trial. On
the order being passed, the lookout
notice that has been issued against the
petitioners will automatically deemed to
have been cancelled and non-existence.
(4)The concerned authorities may
act upon the order that has to be passed
by the concerned jurisdictional
Magistrate Court.
With the above aid observation these writ petitions shall
stand allowed. Consequently, connected Miscellaneous Petitions
are closed.
07.10.2021
Index:Yes/No
Internet:Yes/No
er
Note :
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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.
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G.ILANGOVAN, J
er
WP(MD)Nos.16700 and 16701 of 2021
and
WMP(MD)Nos.13600 and 13603 of 2021
07.10.2021
https://www.mhc.tn.gov.in/judis
