Madras High CourtWP(MD)/812/2024disposed of

P.Niranjankumar v. The Regional Passport Officer

2024-01-22Honourable Mrs Justice V.Bhavani Subbaroyan15 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.01.2024 CORAM :

THE HONOURABLE MR.JUSTICE V.BHAVANI SUBBAROYAN W.P(MD) No.812 of 2024 P.Niranjankumar ... Petitioner Vs.

1.The Regional Passport Officer, Regional Passport Office, Bharathi Ula Street, Race Course Colony, Madurai - 625 002.

2.The Inspector of Police, Meignanapuram Police Station, Thoothukudi District.

... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the first respondent to recall the impoundment of the petitioner's passport No.B6440731 dated 06.11.2023.

For Petitioner : Mr.M.Ganesan For R1 : Mr.P.Paulpandi For R2 : M/s.M.Aasha Government Advocate (Crl.side) 1/15

O R D E R

The Petitioner has prayed for issuance of a Writ of Mandamus, directing the first respondent to recall the impoundment of the petitioner's passport No.B6440731 dated 06.11.2023.

2. Heard Mr.M.Ganesan, learned counsel appearing for the petitioner, Mr.P.Palpandi, learned Central Government Standing Counsel appearing for the first respondent and Mrs.M.Aasha, learned Government Advocate (Crl.side) appearing for the second respondent. 3.The learned counsel for the petitioner would submit that due to a partnership business, the petitioner has been implicated as an accused in Cr.No.30 of 2023 for the offences under Sections 21(4) of Mines and Minerals (D and R) Act, on the file of the Meignanapuram Police Station and as on date, no charge sheet has been filed. In the meantime, in order to pursue visit his parents in abroad, the petitioner has renewed his passport bearing No.B6440731 issued on 06.11.2023, which was recalled by the first respondent. The first respondent issued a letter in SCN/316283517/2023 stating that an adverse police verification report is 2/15

received in connection with the registration of case against him in Crime No.30 of 2023, on the file of the second respondent and directed the petitioner to give an explanation regarding the said criminal case. Based on that, the petitioner has visited the office of the first respondent on 30.11.2023 and submitted an explanation to the first respondent, stating that the case registered as against him as a false one and even after receipt of his explanation, the first respondent has not pass any orders in his application. Being left with no other alternative efficacious remedy, the petitioner constrained to file this writ petition before this Court. 4.The learned counsel appearing for the first respondent would submit that the first respondent has issued show cause notice on 22.11.

2023 to the petitioner directing him to furnish his explanation regarding his involvement in a criminal case on which an adverse police verification report was received by the first respondent. Further, the first respondent recalled the petitioner's passport on the ground that FIR has been registered against the Petitioner in Crime No.30 of 2023 under Sections 21(4) of Mines and Minerals (D and R) Ac and the charge sheet has also been filed before the learned Judicial Magistrate, Saathankulam in C.C.No.14 of 2024.

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5.The learned Government Advocate(Crl.Side)appearing for the second respondent Police would submit that except this case, no other criminal case is pending against the petitioner and in this case charge sheet has also been filed before the learned Judicial Magistrate, Saathankulam in C.C.No.14 of 2024. The Petitioner is under criminal investigation and only after the completion of trial, the first respondent can decide the issue and pass appropriate orders.

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 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, On receipt of an application under 4/15

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 authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) 5/15

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;

(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 6/15

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.

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 7/15

Government, being of the opinion that it is necessary in public interest to do so, hereby exempts 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 8/15

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 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 2017 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 9/15

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."

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. H5939876 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 10/15

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 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 11/15

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 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.

8.The Ministry of External Affairs, Government of India, has issued a statutory notification in GSR.570(E) dated 25.08.1993 with certain guidelines by providing relief to those applicants against whom criminal proceedings are pending before the Courts that they can obtain the passport by obtaining No Objection Certificate from the concerned Court and also by filing an undertaking as prescribed in the notification. 12/15

9. Taking into consideration the facts and circumstances of the case, this Court is inclined to dispose the Writ Petition with the following directions:- (a)The Petitioner has to approach the concerned Court where the case is pending, seeking for permission to go abroad and for issuance of appropriate passport;

(b)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;

(c)On such issuance/renewal, the petitioner shall come over to India and take immediate steps to participate in the criminal proceedings and work out his remedy and defend himself in the case; (d) The petitioner shall also file a memo before the concerned Court, where the criminal case is pending and bring to the notice of the said Court, the orders passed in this writ petition.

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10.With the above directions, the Writ Petition stands disposed of. No costs.

22.01.2024 NCC : Yes / No Index : Yes/No Internet:Yes/No pnn To 1.The Regional Passport Officer, Regional Passport Office, Bharathi Ula Street, Race Course Colony, Madurai - 625 002.

2.The Inspector of Police, Meignanapuram Police Station, Thoothukudi District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 14/15

V.BHAVANI SUBBAROYAN, J.

pnn Order made in W.P(MD) No.812 of 2024 Dated 22.01.2024 15/15