Santosh Pandurang Shetty v. State Of Maharashtra And ANR
TAUSEEF LAIQUEE FAROOQUI TAUSEEF LAIQUEE FAROOQUI Date: 2022.10.10 18:49:10 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3118 OF 2022 Santosh Pandurang Shetty
...Petitioner
V/s.
State of Maharashtra & Anr.
...Respondents
***** Mr. Rajesh L. Dharap for the Petitioner.
Mr. A. R. Patil, APP for the Respondent No.1 (State). *****
CORAM
:
AMIT BORKAR, J.
DATE :
OCTOBER 6, 2022 P.C.:
1.
The Petition under Article 227 is challenging the Judgment and Order dated 4th July 2022 passed by the learned Sessions Court rejecting the request for grant of no objection for renewal of passport.
2.
The Petitioner was arrested in relation to C.R. No.16 of 2012 and C.R. No.36 of 2012 for an offence under Sections 364(A), 367, 368, 343, 344, 346, 387, 34 read with 120B of the Indian Penal Code, 1860 and under Section 31(i), 32 and 34 of Maharashtra Control of Organized Crime Act, 1999 (for short
"MCOCA"). The investigating agency investigated and submitted a report under Section 173 before the designated Special Court. By order dated 30th December 2013, the Petitioner was released on bail. The Special Court, by order dated 5th July 2016, discharged the Petitioner for offences punishable under Section 3(1)(ii), 3(2) and 3(4) of MCOCA and the proceedings were transferred to regular Court for trial.
3.
The Regional Passport Office, Mumbai, had issued a passport to the Petitioner, valid till 15th December 2009. However, thereafter the Petitioner could not renew the passport. Therefore, on 20th October 2021, the Petitioner filed an Application before the Passport Authority of Mumbai for the issuance of a passport. According to the Petitioner, the Passport Authorities are seeking no objection from the Court for renewal/grant of passport. 4.
Therefore, the Petitioner applied before the learned Sessions Court in Sessions Case No.549 of 2016 and 550 of 2016, seeking no objection to getting a fresh passport. However, the learned Sessions Judge, by order dated 4th July 2022, rejected the said Application, holding that there is the possibility of repetition of crime; it is likely that the Petitioner would abscond or flee from
justice as he is involved in illegal activities as a gang member. Accordingly, the said order is the subject matter of challenge in this Writ Petition.
5.
On behalf of the Petitioner, it is submitted that right to travel abroad has already been recognized by the Apex Court as a facet of Article 21 of the Constitution of India in the case of Satwant Singh Sawhney Vs. D. Ramarathan, AIR 1967 Supreme Court 1836. It has been held that the right to travel except to the extent provided under Article 19(1)(d) is within the ambit of personal liberty as contemplated by Article 21 of the Constitution of India. After this Judgment, the Passport Act 1967 was enacted to confer power on the executive to deal with matters relating to passports. The authorities under Passport Act have been conferred with the power to issue or reject a passport on the conditions stated in the said Act. The power conferred on the Passport Authority must be exercised in the manner conferred under Section 6 of the said Act. Section 6.2 of the Passport Act, 1967 read as under:- "6. Refusal of passports, and travel documents. Etc.
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 connect ion 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."
6.
Passports Act 1967, legislation regulating grant or refusal, is for the Passport Authorities to consider whether to grant or refuse a passport. However, while considering the Application to give no objection for the grant of a passport, the Court needs to consider the rights of the citizen conferred by Article 21 of the Constitution of India, which can be taken away except in accordance with the law. The said law is already in force as the Passport Act of 1967. Therefore, the Passport Authority should consider whether to grant or release a citizen a passport or not.
7.
While rejecting the Application for no objection, the learned Sessions Judge has recorded a finding that there is the possibility of repetition of the same crime, and there are chances of Petitioner absconding or flying from the justice. However, having considered the facts of the case, in my opinion, the apprehension expressed is unfounded. The Petitioner had been discharged for offences under the provisions of MCOCA.
8.
In my opinion, the Passport Authority needs to consider the provision of Section 6.2 while considering the grant or rejection of the passport. I, therefore, pass the following order:- (i).The impugned order passed by the learned Sessions Court at Greater Bombay, below Exhibit-127 in C.C. Nos.549 of 2016 and 550 of 2016 dated 4th July 2022, is quashed and set aside.
(ii).The Application below Exhibit-127 is allowed. (iii). It is made clear that a mere grant of no objection by the Court would not be a factor for the Passport Authority while considering the passport Application of the Petitioner.
(iv). The Passport Authority shall decide whether to grant a passport or not in accordance with the provisions of the Passport Act.
(AMIT BORKAR, J.)