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Madras High CourtWP(MD)/21812/2022disposed of

Seenipandi v. The Regional Passport Officer

2022-11-15Honourable Mrs Justice V.Bhavani Subbaroyan15 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15.11.2022

CORAM

THE HONOURABLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN Writ Petition (MD) No.21812 of 2022 Seenipandi, S/o.Vempaiya .. Petitioner

Versus

1.The Regional Passport Officer, Regional Passport Office, Bharathi Ula Veethi, Race Course Road, Madurai.

2.The Inspector of Police, Melapalayam Police Station, Tirunelveli City.

.. Respondents Prayer :- Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, to direct the first respondent to issue passport to the petitioner on the basis of his application, dated 02.08.2022, pending in File No.MD2064458958722 before the first respondent by accepting the petitioner's explanation, within a time frame. For Petitioner : Mr.D.Venkatesh For 1st Respondent : Mrs.L.Victoria Gowri Assistant Solicitor General of India For 2nd Respondent : Mr.B.Thanga Aravindh Government Advocate (Criminal side) 1/15

ORDER

The petitioner has prayed for issuance of a Writ of Mandamus, directing the first respondent to issue passport to him on the basis of his application, dated 02.08.2022, pending in File No.MD2064458958722 before the first respondent, by accepting his explanation, within a time frame.

2. Heard the learned counsel appearing on either side and perused the material placed before this Court.

3. The case of the petitioner is that on 02.08.2022, he applied for passport before the first respondent. On police verification, it was found that the petitioner is connected with the cases in Crime No.96 of 2022 for the offences under Sections 294(b) and 506(ii) of IPC; and in Crime No.437 of 2014 for the offences under Sections 147, 148, 294(b), 307, 323, 324, 452 and 506(ii) of IPC and Section 4 of the TNPHW Act, on the file of the second respondent and the same are pending. Therefore, the first respondent sought for explanation from the petitioner and also to furnish the proof of clearance of the cases. Accordingly, on 01.09.2022, the petitioner sent his explanation, stating that the proceedings in respect of Crime No.96 of 2022 have already been quashed by this Court and he did not know about the pendency of Crime 2/15

No.437 of 2014 against him. However, being not satisfied with the same, the first respondent refused to issue passport to the petitioner. Hence, the petitioner has come forward with the present Writ Petition for the relief stated supra.

4. The second respondent filed a counter affidavit contending among other things that the petitioner has suppressed the vital fact about the pendency of the criminal case in Crime No.437 of 2014. The petitioner herein was involved in two criminal cases on the file of the second respondent Police. Insofar as Crime No.96 of 2022 is concerned, the petitioner was arrested on 22.03.2022 and sent for remand and subsequently, he was enlarged on bail and thereafter, the proceedings in respect of the said crime number has been quashed by this Court based on the joint compromise memo filed by the parties concerned. Insofar as Crime No.437 of 2014 is concerned, the petitioner has already obtained anticipatory bail. The petitioner has wrongly stated that the same is only under FIR stage, however, final report was filed in the said case on 31.10.

2014 before the Judicial Magistrate Court No.V, Tirunelveli, and the same has been taken on file as P.R.C.No.4 of 2016 and on completion of enquiry, the same has been taken cognizance as S.C.No.781 of 2016 and pending trial before the Assistant Sessions Court, Tirunelveli. Further, the petitioner has also involved in Crime No.

case was taken on file as P.R.C.No.63 of 2016, on the file of the Judicial Magistrate Court No.I, Tirunelveli and the said case has been quashed by this Court, in Crl.O.P.(MD)No.1646 of 2021, vide order dated 07.07.2021, however, the petitioner has suppressed to inform about his involvement in the said case as well and prayed for dismissal of the Writ Petition.

5. 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 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 4/15

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) 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;

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(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 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 order prohibiting the departure from 6/15

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 7/15

Ministry of External Affairs No.G.S.R.298(E), dated the 14th April, 1976, the Central 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 8/15

(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 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 9/15

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 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.''

6. 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, 10/15

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 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 11/15

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 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.''

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The above sid order was also followed in the subsequent order passed in Crl.O.P.No.7220 of 2019, dated 07.06.2019.

7. Taking into consideration the facts and circumstances of the case, petitioner is also permitted to take necessary steps to clear himself from the criminal case, this Court is inclined to dispose of 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 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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8. With the above directions, the Writ Petition stands disposed of. No costs.

Index : Yes/No 15.11.2022 smn2 To 1.The Regional Passport Officer, Regional Passport Office, Bharathi Ula Veethi, Race Course Road, Madurai.

2.The Inspector of Police, Melapalayam Police Station, Tirunelveli City.

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

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V.BHAVANI SUBBAROYAN, J.

smn2 Order made in W.P.(MD) No.21812 of 2022 15.11.2022 15/15