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Madras High CourtWP(MD)/23226/2023disposed of

Vijayakumar Rajamanickam v. The Regional Passport Officer

2023-09-22Honourable Mr Justice B.Pugalendhi8 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.09.2023

CORAM:

THE HONOURABLE MR.JUSTICE B.PUGALENDHI Vijayakumar Rajamanickam ... Petitioner Vs 1.The Regional Passport Officer, New Municipal Complex, Thillai Nagar, 7th cross, Trichirappalli-620 018.

2.The State rep. by The Inspector of Police, Avudaiyarkovil Police Station, Pudukkottai District.

...Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a writ of Mandamus, directing the first respondent to re-issue the petitioner's passport No.SO566817 and to issue Passport vide the petitioner's Application No.TR2075394698923, dated 24.05.2023.

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For Petitioner :Mr.S.Sathyachidambaram For R1 :Mr.Malaiyendran Central Government Standing counsel For R2 :Mr.P.Kottaichamy Government Advocate

O R D E R

The petitioner's application for renewal of passport was not considered by the Passport Authority, on the ground that an FIR is pending as against this petitioner.

2. Originally the petitioner was issued with a Passport bearing No.SO566817, on 04.05.2018 and the same was expired on 03.05.2020. Now, the petitioner has applied for re-issuance of passport on 24.05.2023 and on the report of the police, the first respondent has called upon the petitioner to offer his explanation with regard to the criminal case which has been noted in the police verification report.

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3. The petitioner without appearing before the first respondent has filed this writ petition for a mandamus directing the first respondent to re-issue the passport to the petitioner.

4. The learned Government Advocate (Crl.side) appearing for the second respondent submitted that the petitioner has involved in two criminal cases in Cr.No.139 of 2022, on the file of the Avudaiyarkoil Police Station for the offences under Sections 143, 341, 283 of IPC and in Cr.No.140 of 2022, on the file of the Avudaiyarkoil Police Station for the offences under Sections 147, 294(b), 323 and 506(2) IPC and the same are pending investigation and both cases are at the stage of FIR.

5. Pendency of an FIR, by itself, cannot be a ground to refuse the passport. The Passport Authority can refuse the passport and any travel documents under Section 6 of the Passport Act, 1967. Section 6(2)(F) of the Act would be relevant and the same is extracted as under:- 3/8

"6.Refusal of passports, 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 - ...

(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a Criminal Court in India."

6.The above provision enables the Passport Authority to refuse the passport or travel document to an applicant on the ground that proceedings in respect of an offence alleged to have been committed by the applicant is pending before a Criminal Court. Registration of an FIR on the police files, based on a complaint, cannot be construed as a proceedings pending before the Criminal Court. 7.The role of the Court pending the investigation has been discussed by various Courts. In W.Jaihar William v. State of Tamil Nadu [2014 (2) CWC 684], this Court has held as follows:- 4/8

"8. ... It is well settled legal principle that mere pendency of FIR cannot be construed as pendency of criminal proceedings in respect of the offences alleged to have been committed by the applicant before the Criminal Court. Only after the Court takes cognizance of the offence alleged to have been committed by the applicant, as stipulated under Section 190 of Cr.PC., it can be construed as 'proceedings pending before the Court'"

8.A Division Bench of this Court in Arumugam v. Regional Passport Officer, Madurai [W.A(MD)No.301 of 2018, dated 27.03.2018], has held as follows:- "8. ... mere pendency of the criminal proceedings cannot be construed as pendency of the criminal proceedings. The decisions relied on for reaching the said conclusion in the above cited decision, would also disclose that unless cognizance is taken by the concerned Magistrate, it does not amount to pendency of the criminal proceedings. Admittedly, in the case on hand, the case is in FIR stage and even for the sake of arguments, subsequently, the charge sheet has been filed, as on the date of submission of the application for passport, only FIR is pending and it cannot be construed as pendency of a criminal case and it cannot be said that the petitioner has suppressed the material fact of pendency of the 5/8

criminal case."

9.In fact, the Ministry of External Affairs, Government of India, has issued a Circular dated 10.10.2019, wherein, the following instruction was issued:- "5. In view of the above, the following instructions may be adopted while processing the passport applications in respect of those applicants who may have criminal proceedings pending before a criminal court in India: ...

(vi) ... 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."

Therefore, the Passport Authority is not justified in not deciding the application filed by the petitioner for renewal of passport by referring the criminal case.

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10.Ordinarily, the duration of a passport as per Rule 12 of the Passport Rules is for a period of 10 years. In the event if the applicant is facing any criminal proceedings, the passport may be issued by restricting the period.

11.Accordingly, this writ petition is allowed with a direction to the Passport Authority to renew the passport to this petitioner, by considering his application, within a period of twelve weeks from the date of receipt of a copy of this order.

NCC : Yes / No.

Index : Yes / No.

22.09.2023 Internet:Yes am To 1.The Regional Passport Officer, New Municipal Complex, Thillai Nagar, 7th cross, Trichirappalli-620 018.

2.The Inspector of Police, Avudaiyarkovil Police Station, Pudukkottai District.

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B.PUGALENDHI, J.

am Order made in 22.09.2023 8/8