Orissa High Court
(An Application Under Article 226 Of The ... vs Union Of India And Another .... Opp. ... on 8 January, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-Jan-2024 16:44:00
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 23492 OF 2023
(An application under Article 226 of the Constitution
of India)
****
Santosh Kumar Tripathy .... Petitioner
-versus-
Union of India and another .... Opp. Parties
Advocates appeared:
For Petitioner : Mr. Rajjeet Roy, Advocate
For Opp. Parties : Mr. Prasanna Kumar Parhi, DSGI
along with Mr. Dipti Ranjan Bhokta, CGC
CORAM:
JUSTICE K.R. MOHAPATRA
------------------------------------------
Heard and disposed of on 08.01.2024
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Hard copy of Counter Affidavit filed in Court today is
taken on record.
3. The Petitioner in this writ petition seeks to assail the
order dated 15th May, 2023 (Annexure-4) passed by the Regional
Passport Officer, Odisha, Bhubaneswar refusing to renew the
passport of the Petitioner and granting liberty to make a fresh
application for renewal of passport giving the undertaking in the
format appended to the said order.
4. Mr. Roy, learned counsel submits that the Petitioner was
issued with a passport bearing Registration No.K7858157. When
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 18-Jan-2024 16:44:00
it was about to expire on 27th February, 2023, he made an
application for renewal of the passport. The said application was
rejected on the ground that a criminal case was pending against
the Petitioner. Hence, this writ petition has been filed assailing
the said order under Annexure-4.
5. Mr. Roy, learned counsel for the Petitioner submits that a
criminal case is stated to be pending when cognizance is taken in
the said case. In the police verification report submitted pursuant
to the request of the Regional Passport Officer, it is stated that
the applicant is facing charges under Sections 294/323/354/
506/34 IPC in connection with Laxmisagar P.S. Case No.88
dated 10th March, 2021 and the Petitioner has been charge-
sheeted. It is further clarified in the said police verification
report that no warrant/summon for appearance of the Petitioner
is pending. He, therefore, submits that when no summon/warrant
has been issued against the Petitioner in the aforesaid criminal
case, it cannot be a said that a criminal case is pending against
him. In support of his submission, he relied upon the office
memorandum dated 10th October, 2019 issued by the Ministry of
External Affairs, Government of India in the matter of issuance
of passport to the applicants against whom criminal case is
pending (appended to the impugned order under Annexure-4),
which clarifies regarding pendency of criminal case at
Paragraph-5(vi) of the said memorandum. The same reads as
under:
"(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
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 18-Jan-2024 16:44:00
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."
(emphasis supplied)
5.1. He, therefore, submits that when cognizance of offences
alleged against the Petitioner has not yet been taken, mere filing
of charge-sheet will not amount to pendency of the case. He,
also relied upon the decision in the case of Venkateswara Rao
Maladi -v- The Regional Passport Officer, reported in AIR
Online 2023 AP 112, wherein the High Court of Andhra Pradesh
held as under:
"23. The Madhurai Bench of Madras High Court in J.
Mathanagopal v. The Regional Passport Officer held as
extracted hereinunder:
"19. It is not in dispute that the case that is pending
before the Judicial Magistrate, is yet to be taken
cognizance by the Sessions Court and the case is
still pending before the Judicial Magistrate in
P.R.C. No. 32 of 2016 and as such, it cannot be
termed to be a pendency of criminal case. In view
of the same, the provisions of the Indian Passports
Act, 1967 may not be attracted. While that being
so, it would not be appropriate to direct the
petitioner to approach the "concerned court" to
obtain an order by way of a direction to enable him
to get the relief before the passport authorities."
24. Learned counsel for the petitioner placed on record the
Office Memorandum No.VI/401/1/5/2019 dated 10.10.2019
issued by the PSP Division, Ministry of External Affairs,
Government of India, before this Court. In the said Office
Memorandum, Point No.6 is extracted hereinunder:
"(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."
25. xxxx xxxx xxxx xxxx
// 4 //
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 18-Jan-2024 16:44:00
26. Considering the above settled law and the Office
Memorandum No. VI/401/1/5/2019 dated 10.10.2019 issued
by the Government of India, this Court has no hesitation to
hold that Section 6(2)(f) of the Passport Act, 1967, would
arise when there is pending proceedings before the Criminal
Court after cognizance is taken."
He, therefore, submits that in the facts and circumstances of the
case, it cannot be held that a criminal case is pending against the
Petitioner. He, therefore, submits that the impugned order under
Annexure-4 is not sustainable and is liable to be set aside. The
prayer of the Petitioner for renewal of the passport should be
considered without insisting upon submitting information with
regard to pendency of the criminal cases against him.
6. Mr. Parhi, learned DSGI submits that the Hon'ble
Supreme Court in the case of Vangala Kasturi Rangacharyulu
-v- Central Bureau of Investigation, reported in 2021 SCC
OnLine SC 3549 while discussing the scope of Section 6(2)(e)
of the Passport Act, 1967 (for short 'the Act') held as under:
".......The refusal of a passport can be only in the case
where applicant is convicted during the period of 05 years
immediately preceding the date of application for an
offence involving moral turpitude and sentence for
imprisonment for not less than two years........"
The Hon'ble Supreme Court in the aforesaid case was dealing
with applicability of the application under Section 6(2)(e) of the
Act and not an application under Section 6(2)(f) of the Act.
Thus, the ratio in the case of Vangala Kasturi Rangacharyulu
(supra) is not applicable to the instant case. However, pursuant
to the said direction, a further clarification has been issued by
office memorandum dated 14th March, 2023, which is filed in
Court today along with an affidavit of the Regional Passport
Officer. The said office memorandum reads as under:
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 18-Jan-2024 16:44:00
"Ministry is in receipt of various reference from
the Passport Issuing Authorities(PLAs) regarding handling
of the cases wherein passport applicant has been convicted
by the trial court for an offence and sentenced to
imprisonment for not less than two years but applicant
prefers the appeal against conviction which is pending in
the Appellate Court proceedings are stayed by Appellate
Court, cases wherein trial proceedings are stayed by the
Appellate Court and cases wherein conviction is stayed by
the Appellate Court.
2. The matter has been examined in consultation with the
Department of Legal Affairs, Ministry of Law & Justice,
Government of India who have opined as follows:-
(i) The cases where the trial is completed and the
accused is convicted by the trial court but the
convict/applicant prefers an appeal against the
order of conviction, which is pending in the
Appellate Court, the Supreme Court in the case
titled "Vangala Kasturi Rangacharyulu Vs CBI"
has observed that the refusal of a passport can be
only in the case where applicant is convicted
during the period of 05 years immediately
preceding the date of application for an offence
involving moral turpitude and sentenced w
imprisonment for not less than two years as per
Section 6(2)(e) of the Passports Act 1967 [which
inter alia provides that the passport authority shall
refuse to issue a passport or travel document on the
ground then the applicant has it 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 turpitude and sentenced in respect
thereof to imprisonment for not less than two years].
(ii) The cases where the Appellate Court has stayed
the conviction, the legal effect would be that in
such cases Section 6(2)(e) of the Passports Act
1967 may not be applicable.
(iii) The cases where trial proceedings have been
stayed by the Appellate Court. applicability of
Section 6(2)(1) [which inter-alia provides that the
passport authority shall refuse to issue a passport or
travel document on the ground that proceedings in
respect of in offence alleged to have been committed by
the applicant are pending before a criminal court in
India], would depend upon the nature of stay,
reasons for stay and stage at which proceedings
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 18-Jan-2024 16:44:00
have been stayed. No definitive view of such cases
can be expressed.
3. All Passport Issuing Authorities in India & Abroad are
advised to strictly follow the above mentioned
instructions."
He further submits that charge sheet has already been submitted
against the Petitioner in the criminal case pending against him.
Thus, the Petitioner has to give an undertaking as required under
Section 6(2)(f) of the Act. The Petitioner has also been permitted
to file a fresh application for renewal of his passport complying
with the requirements of office memorandum dated 10th October,
2019. Thus, there is no illegality in the impugned order under
Annexure-4.
6.1. He further submits that in a similar circumstance, a
Collateral Bench of this Court has passed an order directing the
Passport Authorities to renew/issue passport. The said order was
challenged in W.A. No.1663 of 2022 and Hon'ble Division
Bench vide order dated 13th April, 2023 held as under:
"2. In view of the above developments, the present
appeal is in fact, peculiar facts of the case of the
Respondent No.1, infructuous. Nevertheless, learned
counsel for the Appellant states that several other writ
petitions have been filed claiming similar relief, where the
impugned judgment is being cited as a precedent. In that
view of the matter, it is clarified that the impugned
judgment will not constitute precedent and will be treated
as having been passed in the peculiar facts and
circumstances of the case. The questions of law arising
from the said impugned judgment are left open for decision
in some other appropriate case."
Thus, while disposing of the appeal, Hon'ble Division Bench has
already held that the order passed by the Collateral Bench cannot
be treated as a precedent. As such, the said decision of the
Collateral Bench is also not applicable to the case of the
Petitioner. He also submits that the Petitioner has a remedy of
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 18-Jan-2024 16:44:00
appeal under Section 11 of the Act, which he has not exhausted.
As such, the writ petition should not be entertained and the same
is liable to be dismissed.
7. Considering the rival contentions of the parties and on
perusal of the record, this Court feels it proper to go through
Section 6(2) of the Act, which reads as under:
"6. Refusal of passports, travel documents etc-
(1) xxx xxx xxx xxx
(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 sub-section (2)
of section 5 on any one or more of the following grounds, and
on no other ground, namely: -
(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 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;
(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 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."
Section 6(2)(e) of the Act deals with issuance of passport or
travel document, when during last five years of making such
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 18-Jan-2024 16:44:00
application, the applicant is convicted in an offence involving
moral turpitude and is sentenced to undergo imprisonment for
more than two years. Section 6(2)(f) of the Act deals with a
situation where the applicant is facing a criminal trial. In the
case of Vangala Kasturi Rangacharyulu (supra), the Hon'ble
Supreme Court has dealt with Section 6(2)(e) and Section 6(2)(f)
of the Act. The legal position has also been clarified by the
High Court of Andhra Pradesh in the case of Venkateswara Rao
Maladi quoted supra.
8. Upon a close reading of the provision under Section 6(2)
of the Act as well as the case laws cited and also Office
Memorandum dated 10th October, 2019, there cannot be any iota
of doubt that if in a case pending before any criminal Court, the
Judicial Magistrate has not taken cognizance of the offences, it
cannot be said to be a 'case pending'. It has also been clarified
in the office memorandum dated 10th October, 2019. In the
instant case, although charge-sheet has already been submitted
against the Petitioner in the aforesaid criminal case, there is no
material on record to ascertain that cognizance has been taken
for the offences. As such, this Court does not find any legal
impediment to consider the application of the Petitioner for
renewal of his passport.
9. On perusal of the order passed in W.A. No.1663 of 2022,
it appears that the Hon'ble Division Bench has not discussed the
legal aspect of the order of the Collateral Bench. Thus, I am of
the considered opinion that this writ petition can be considered
independently bereft of the order passed in W.A. No.1663 of
2022.
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 18-Jan-2024 16:44:00
10. Availability of a statutory remedy is not a bar for this
Court to exercise its discretion under Article 226 of the
Constitution of India, more particularly when a legal
interpretation is involved.
11. In view of the discussion made above, this Court has no
hesitation to set aside the impugned order under Annexure-4.
Accordingly, the impugned order under Annexure-4 is set aside.
Since the application for renewal of passport has already been
rejected, the Petitioner has to make a fresh application for
renewal of his passport.
12. Accordingly, the writ petition is disposed of with a
direction that if the Petitioner makes a fresh application for
renewal of his passport bearing Registration No.K7858157, it
shall be considered without insisting upon getting an order/NOC
from the competent criminal Court with regard to pendency of
the criminal cases.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
