Madras High Court
S.Gunasekaran vs The Regional Passport Officer on 28 July, 2023
W.P.No.21990 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.07.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
W.P.No.21990 of 2023
and
W.M.P.No.21359 of 2023
S.Gunasekaran
...Petitioners
vs.
1.The Regional Passport Officer,
First Floor, Corporation Commercial Complex,
Opp. Thandumariamman Koil,
Avinashi Road, Coimbatore 641 018.
2.The Inspector of Police,
Chettipalayam P.S. Coimbatore.
...Respondents
PRAYER:
Writ Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Certiorarified Mandamus, to call for the records of the first
respondent in File No.CB1075014321923 dated 09.06.2023 and to quash the
same and direct the first respondent to renew the passport of the petitioner
within a time frame as fixed by this Court.
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For Petitioners : Mr.N.Santhosh Nagarajan
For Respondents : Mr.A.Damodaran
Additional Public Prosecutor
********
ORDER
This writ petition has been filed challenging the proceedings of the first
respondent dated 09.06.2023 and for a direction to the first respondent to renew
the passport of the petitioner within a time frame fixed by this Court.
2. Heard the learned counsel for the petitioner and the respondent and
also perused the materials available on record.
3. The case of the petitioner is that an accident took place on 20.06.2021
and based on the same, an FIR came to be registered for the offences under
Sections 279, 304A, 337 and 338 of IPC. The investigation was completed and
the final report was filed before the Court below. In the meantime, since the
tenure of the passport of the petitioner is going to end, the petitioner has
approached the first respondent and sought for renewal of his passport. The first
respondent through the impugned proceedings dated 09.06.2023 rejected the
request made by the petitioner on the ground that the petitioner has not
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submitted any order or judgment from the concerned Court. Aggrieved by the
same, the petitioner has filed this writ petition and also sought for a further
direction to the first respondent to renew the passport of the petitioner within the
time frame fixed by this Court.
4. The issue that is involved in the present writ petition is directly covered
by the earlier judgment passed by the Court in Rahul Ravendran versus Union
of India, Rep.by its Principal Secretary to Government, Ministry of External
Affairs, New Delhi and others reported in 2021 (4) MLJ Criminal 289. The
relevant portions in the said judgment is extracted here under:
“5. The main ground that has been raised by the
respondents while opposing the re-issue / renewal of the
Passport is that, criminal proceedings are pending against the
petitioner before the Judicial Magistrate Court, Valliyoor in
P.R.C.No.121/2017. According to the respondents, the
petitioner has concealed the pendency of the criminal
proceedings and therefore, he is not entitled for the re-issue/
renewal of the Passport.
6. This Court had an occasion to deal with a similar issue
in W.P.(MD) No.7056 of 2017 in the case of N.Chandrababu vs.
the Sub Inspector of Police and another. The relevant portions
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in the order dated 21.04.2017 are extracted hereunder:
“3)..... At this juncture, it may be relevant to discuss the
legal position with regard to the right of a person facing
criminal prosecution to demand issuance of passport. To decide
this issue, it may be necessary to extract the following legal
provisions from the Passports Act, 1967.
'Section 5(2) of the Passports Act, 1967 On receipt of an
application under this section, the passport authority, after
making such inquiry, if any, as it may consider necessary, shall,
subject to the other provisions of this Act, by order in writing,-
(a) issue the passport or travel document with
endorsement, or,as the case may be, make on the passport or
travel document the endorsement, in respect of the foreign
countries specified in the application; or
(b) issue the passport or travel document with
endorsement, or,as the case may be, make on the passport or
travel document the endorsement, in respect of one or more of
the foreign countries specified in the application and refuse to
make an endorsement in respect of the other country or
countries ; or
(c) refuse to issue the passport or travel document or, as
the case may be, refuse to make on the passport or travel
document any endorsement. Section 6(2) of the Passports Act,
1967.
Subject to the other provisions of this Act, the passport
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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, an on
no other ground,
(a) that the applicant is not a citizen of India;
(b) that the applicant may, or is likely to, engage outside
India in activities prejudicial to the sovereignty and integrity of
India;
(c) that the departure of the applicant from India may, or
is likely to, be detrimental to the security of India;
(d) that the presence of the applicant outside India may,
or is likely to, prejudice the friendly relations of India with any
foreign country;
(e) that the applicant has, at an 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;
(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) that a warrant or summons for the appearance, or a
warrant for the arrest, of the applicant has been issued by a
Court under any law for the time being in force or that an order
prohibiting the departure from India of the applicant has been
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made by any such Court;
(h) that the applicant has been repatriated and has not
reimbursed the expenditure incurred in connection with such
repatriation;
(i) that in the opinion of the Central Government the
issue of a passport or travel document to the applicant will not
be in the public interest.
4) For deciding the issue at hand, Section 6(2)(f) will be
relevant. A reading of the said provisions shows that the power
of the Passport Authority to refuse issuance of passport under
Section 5(2)(c) is governed by Section 6(2). Thus, for any of the
reasons given in Clause (a) to (i) of Section 6(2), the Passport
Authorities can refuse to issue a passport in exercise of power
under Section 5(2)(c). The Parliament, in its wisdom, has
conferred the aforesaid power, which is administrative in
nature, on the Passport Authority. The Central Government has
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
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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 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
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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 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.
5. From a reading of the aforesaid Notification, in the
opinion of this Court, the expression 'concerned Court' will
mean the Court before whom the person is facing the
prosecution. In this case, had there not been a quash petition
pending, the 'concerned Court' would be the learned Judicial
Magistrate No.V, Trichy before whom the petitioner is facing
trial in C.C.No.21 of 2015. However, this Court, in exercise of
its power under Section 482 of Cr.P.C., has admitted
Crl.O.P.(MD)No.3533 of and has granted stay of all further
proceedings in C.C.No. 21 of 2015 on the file of Judicial
Magistrate No.V, Trichy. Under such circumstances, the
expression 'concerned Court' in the context of the present case
will mean the High Court and not the Judicial Magistrate No.V,
Trichy.”
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7. This Court also had another occasion to consider the
same issue in Crl.O.P(MD) No.5068 of 2018 in Noushad
Thazhaith vs. State, rep.by the Deputy Superintendent of Police
and another. The relevant portions of the order are extracted
hereunder:
"The petitioner is facing trial in PRC No.2 of 2013 before
the Judicial Magistrate No.III, Coimbatore for the offences
under Section 4 (a) and 6 r/w 4(G) of the Explosive Substance
Act, 1908. The petitioner has filed a quash application in
Crl.O.P.No.3532 of 2018 challenging the prosecution and the
same is pending before this Court. The petitioner is the holder
of Indian Passport bearing No. H 5939876 issued at
Kozhikode, Kerala on 09.09.2009 valid upto 08.09.2019.
2.It is the case of the petitioner that he has business
interest in the Middle East and that he has been going abroad
frequently on valid visa. It is his further case that the pages in
his passport got exhausted and therefore, when he applied for a
fresh passport, the Passport Authorities directed him to obtain
necessary permission under Section 6(2)(f) r/w Section 22 of
the Passports Act r/w Notification No. GSR 570 E dated
25.08.1993. Hence, the petitioner has filed the present
application for permission.
3.Heard Mr.N.Manokaran, learned counsel for the
petitioner, Mr.C.Raghavan for the respondent Police and
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Mr.N.Vijaya Baskar for 2nd respondent Passport Authorities.
4.Under normal circumstances, in a case of this nature,
this Court would not grant permission for the petitioner to go
abroad. However, it is seen that this petitioner has been
granted permission earlier by the learned Judicial Magistrate
No.III, Coimbatore vide order dated 03.11.2015 in CMP.No.
4280/2015 and by this Court in Crl.O.P.No.22055/2016 dated
10.02.2017. The learned Judicial Magistrate No.III,
Coimbatore in his order dated 03.11.2015 has noted that the
petitioner has been appearing regularly before the Court from
2013 onwards and because of the failure of the prosecution to
summon the co-accused, the Magistrate has not been able to
commit the case to the Court of Sessions. Only this aspect has
weighed in the mind of this Court for positively considering the
request of the petitioner. The law with regard to grant of
permission for renewal of passport has been settled by this
Court in N.Chandrababu vs. Sub Inspector of Police Palakkarai
Police Station, Trichy [2017 (3) CTC 493] and it may not be
necessary to recapitulate the legal propositions.
5.Suffice it to say that, when a criminal case is pending
before a Court, passport can be issued or renewed only on the
basis of production of orders from the concerned Court
permitting the applicant to depart from India. In notification
NOGSR 570 B, the conditions under which a passport or travel
documents could be issued has been enumerated. Taking into
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consideration the earlier conduct of the petitioner, as noted by
the Judicial Magistrate No.III in his order dated 03.11.2015,
this Court grants permission to the petitioner to depart from
India and return within a period of eight months from the date
of this order. Exemption is granted to the petitioner from the
operations of the provisions of Clause (f) sub section (2) of
section 6 of the Passports Act, for a period of eight months from
the date of this order. The petitioner shall abide by the
conditions set out in the notification dated 25.08.1993”.
The above order was also followed in the subsequent
order passed in Crl.O.P.No.7220 of 2019 dated 07.06.2019”
5. It is clear from the above judgment that wherever the criminal
proceedings are pending before the Competent Court and the accused person
seeks for renewal or for issuance of fresh passport, necessary application must
be made before the concerned Court and the order passed by the Court must be
produced before the Authority for renewal of the passport. This Court has taken
into consideration the notification dated 25.08.1993, that was issued by the
Central Government in this regard. This Court has held that reading of the
notification will clearly show that the “concerned Court” will mean the Court
before which the person is facing proceedings.
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6. In this case the petitioner is facing proceedings before the learned
Judicial Magistrate, Madukkarai, Coimbatore in C.C.No.16 of 2023. In view of
the same, the petitioner has to make an appropriate application before the
concerned Court and get permission for renewal of his passport. Except giving
this clarity, no further orders will be passed in this writ petition. Once the
learned Judicial Magistrate, Madukarai, Coimbatore, passes the order, the same
can be produced before the first respondent and the first respondent shall
consider the same for the renewal of passport of the petitioner.
7. This writ petition is disposed of in the above terms. Consequently, the
connected miscellaneous petition is also closed. No cost.
28.07.2023
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
nsa
To
1.The Regional Passport Officer,
First Floor, Corporation Commercial Complex,
Opp. Thandumariamman Koil,
Avinashi Road, Coimbatore 641 018.
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2.The Inspector of Police,
Chettipalayam P.S. Coimbatore.
3.The Public Prosecutor,
Madras High Court,
Chennai 600 104.
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N. ANAND VENKATESH, J.
nsa
W.P.No.21990 of 2023
and W.M.P.No.21359 of 2023
28.07.2023
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Page No.14/14
