Uttarakhand High Court
WPMS/2097/2021 on 4 October, 2021
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
WPMS No.2097 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Shashi Kant Shandilya, Advocate for the
petitioner.
Mr. T.S. Phartiyal, Addl. C.S.C. for the State
of Uttarakhand.
Mr. Atul Bahuguna, Standing Counsel for
Union of India.
The brief facts, which are involved
consideration in the present writ petition are that the
petitioner contends, that he is a student of LLB and
as against him a FIR was registered on 31.05.2021
being FIR No.474 of 2021 for his alleged
involvement in the commission of the offence
punishable under Sections 353, 332, 504, 186 IPC,
which was registered at P.S. Laksar, District
Haridwar.
The petitioner has specifically come up with
the case in the writ petition, that the investigation in
relation to the aforesaid criminal case is still
pending consideration and the investigation has not
yet concluded, hence no charge sheet has been
submitted as such till date before the Magistrate
concerned. In fact, in the absence of the submission
of charge sheet, the argument of the counsel for the
petitioner, is that there is no criminal proceedings,
as such which is pending consideration against the
petitioner, which could determine the status of the
petitioner as to be an under trial.
The petitioner submits that on 04.08.2021, he
has submitted his application for the grant of the
passport, but his application for the grant of
passport had not been considered in view of the
following observation:
"Police verification report is not clear and
the application is under review at the
Regional Passport Office."
The petitioner submits that since the
petitioner is an applicant and one of the aspirants to
be considered for admission in IDP Education
India, Private Limited, the condition provided
therein in the application, form contains one of the
mandatory clause, that the applicant has to attach a
Xerox copy of passport i.e. it's first page and the
last page; in order to further process his application.
The petitioner contends that since he is not holding
the passport as on today, as such because his
application is pending consideration, he is unable to
avail the benefit of being an applicant before the
IDP India, Private Limited.
The counsel for the petitioner has made
reference to a judgment rendered by the Coordinate
Bench of Kerala High Court and particularly it dealt
with almost an identical situation, that as to under
what circumstances, the passport could be issued in
relation to those applicants, against whom the
criminal proceedings have been initiated. He
submits that if para 22 of the said judgment
rendered by the Kerala High Court in Writ Petition
(C) No.15182 of 2021 Thadevoose Sebastian vs.
The Regional Passport Office Trivandrum is
taken into consideration, which is extracted
hereunder:-
"22. In view of the aforesaid, since the
petitioner is unable to fully satisfy this Court,
the stage of crime No. 1480 of 2012 of the
Nedumbassery Police Station, this writ
petition is ordered directing the petitioner to
approach the jurisdictional Magistrate and
obtain appropriate orders if the final report
has been filed and cognizance taken. On the
other hand, if the final report has not been
filed and cognizance not taken yet, there is
no criminal proceeding pending and the
Passport Authority is free to decide the
grant of passport without permission from
the Magistrate. To enable the passport
authorities to process the application filed by
the petitioner for grant of a fresh passport,
petitioner is given the liberty to file his
explanation to Ext.P7 within ten days from
the date of receipt of a copy of this Judgment
and thereafter the second respondent shall
W.P.(C) No.15182/21 -:16:- pass appropriate
orders within an outer period of four weeks
thereafter. The writ petition is disposed of
with the above observation."
The aforesaid ratio, of Kerala High Court,
rather it has carved out an exception, that until and
unless the final report, has been filed and the
cognizance has been taken, it may not be creating
any embargo for the passport authorities, to decide
the application for the grant of passport because in
the absence of there being any cognizance being
taken, in fact no trial has commenced where the
permission would have been required to be taken
from Magistrate concerned.
In view of the aforesaid and without
expressing any opinion on the merits of the matter,
since the position, which has now emerged, that the
investigation is pending consideration, no charge
sheet has been submitted till date, no cognizance
has been taken by the competent Magistrate
concerned of the offences complained of, hence, in
view of para 22 of the judgment of the Coordinate
Bench of Kerala High Court, this writ petition is
being disposed of with the direction to respondent
no.3, to consider and pass an appropriate order on
petitioner's application dated 04.08.2021; for the
grant of the passport in accordance with law and the
decision on his application would be taken within a
period of one week from the date of production of
the certified copy of this judgment.
(Sharad Kumar Sharma, J.)
04.10.2021
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