Orissa High Court
Aishwarya Sahoo vs Government Of India And Another ... ... on 8 January, 2024
Author: K.R. Mohapatra
Bench: Krushna Ram Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 19-Jan-2024 13:20:18
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.35289 of 2023
(In the matter of an application under
Article 226 of the Constitution of India, 1950)
*******
Aishwarya Sahoo ... Petitioner
-versus-
Government of India and another ... Opposite Parties
Advocate for the Parties
For the Petitioner : Ms. Sujata Jena, Advocate
For Opp. Party : Mr. Prasanna Kumar Parhi, DSGI
along with Mr. D.R. Bhokta, CGC
CORAM:
JUSTICE KRUSHNA RAM MOHAPATRA
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Heard and Disposed of on 08.01.2024
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JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. Petitioner in this writ petition seeks to set aside the letter
dated 4th October, 2023 (Annexure-6) issued by the Regional
Passport Officer, Bhubaneswar, Odisha-Opposite Party No.2
directing the Petitioner to obtain the order from the concerned
criminal Court allowing him to go abroad and to submit the same
along with the prescribed undertaking before the Passport Authority
for renewal of her passport.
// 2 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 19-Jan-2024 13:20:18
3. Ms. Jena, learned counsel for the Petitioner submits that the
Petitioner was issued with a passport bearing Number W5519561.
It was issued on 24th November, 2022 and was valid upto 23rd
November, 2023. Accordingly, the Petitioner made an application
for renewal of her passport. Considering her application, letter
under Annexure-6 has been issued.
4. It is her submission that the Petitioner had obtained a loan
from the Canara Bank. Alleging misutilization of the money for
which it was obtained, an FIR was lodged on 17th August, 2021
(Annexure-1) against her. Till date, no charge sheet has been
submitted pursuant to the said FIR. In view of the above, it cannot
be said that a criminal case is pending against the Petitioner. Thus,
the provision under Section 6(2) (f) of the Passport Act, 1967 (for
brevity 'the Act') has no application to the case of the Petitioner.
Hence, she prays for a direction to the passport Authority to
consider the application for renewal of passport without insisting
upon the restriction under Section 6(2) (f) of the Act.
5. Mr. Parhi, learned DSGI along with Mr. Bhokta, learned
CGC submits that admittedly an FIR has been lodged against the
Petitioner and it is under investigation. Thus, she is required to
submit an order from the concerned criminal Court allowing her to
move abroad. In absence of such document, it would be difficult on
the part of the Regional Passport Authority to take a decision on
renewal of her passport.
6. 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:
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Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 19-Jan-2024 13:20:18
"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
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Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 19-Jan-2024 13:20:18
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."
7. Section 6(2)(e) of the Act deals with issuance of passport or
travel document when during last five years of making such
application the applicant is convicted in an offence involving moral
turpitude and is sentence 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 -v- Central Bureau of Investigation,
Hon'ble Supreme Court 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
sentenced w imprisonment for not less than two
years"
8. In the aforesaid case law, Hon'ble Supreme Court has dealt
with and explained the scope of 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
-v- The Regional Passport Officer, reported in AIR Online 2023
AP 112, in which it is held as under:
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Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 19-Jan-2024 13:20:18
"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
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."
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Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 19-Jan-2024 13:20:18
9. Para-5(vi) of the Office Memorandum dated 10th October,
2019 issued by the Ministry of External Affairs, Government of
India, 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 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)
10. 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, no
charge sheet has been submitted against the Petitioner in the
aforesaid criminal case. As such, this Court does not find any legal
impediment to consider the application of the Petitioner for renewal
of his passport.
11. 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
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Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 19-Jan-2024 13:20:18
considered opinion that this writ petition can be considered
independently bereft of the order passed in W.A. No.1663 of 2022.
12. 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.
13. In view of the discussion made above, this Court has no
hesitation to set aside the letter under Annexure-6. Since the
application for renewal of passport is still pending for
consideration, it should be considered keeping in mind the
discussion and observation made above.
14. Accordingly, the writ petition is disposed of with a
direction that application of the Petitioner for renewal of passport
bearing Registration No. W5519561 shall be considered without
insisting upon getting an order/NOC/order from the competent
criminal Court as required under Annexure-6.
Urgent certified copy of this judgment be granted on proper
application.
(K.R. Mohapatra)
Judge
High Court of Orissa, Cuttack
Dated 8th day of January, 2024/ Rojalin
