Kar HC | Elaborating upon S.6 of Passport Act, Court directs for renewal of passport to authorities concerned irrespective of a pending criminal case against petitioner

Karnataka High Court: Hemant Chandangoudar J., while allowing the Writ Petition against the Passport Authority, elaborated upon the relevant provisions of the Passport Act and the Right to unhindered movement as a facet to Article 21.

Brief Facts

This writ petition is filed under Article 226 of the constitution praying to direct respondent 1 to 3, to allow the petitioner’s application for renewal of his passport and further direct the respondents to refrain from taking any coercive steps against the petitioner, including but not limited to the deportation of the petitioner from USA to India, until renewal and fresh issuance of the passport.

Issue

Whether pendency of a criminal case create a statutory bar on renewal of passport?

Observation

• The Court reproduced Section 6 of the Passport Act, which enumerates grounds for refusal of Passports, travel documents, etc.

“(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any country under clause (b) or 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 may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India

(b) That the presence of the applicant in such country may, or is likely to, be detrimental to the security of India

(c) That the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country

(d) That in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.

(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 applicant, 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 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.”

• With respect to the refusal of Passport upon the pendency of criminal case, the Court elaborated over Section 6(2)(f) of the Passport Act, stating,

“A reading of Section 6(2)(f) of the Passport Act indicates that, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country, if a criminal proceeding is pending against the applicant in India. However, the said provision does not provide for refusing to issue a passport for a person who intends to travel back to India. Hence, reading of this provision clearly indicates that it is applicable only for issuing a fresh passport and not for renewal of passport and this view is fortified by the decision of the Delhi High Court rendered in the case of Ashok Khanna v. Central Bureau of Investigation, 265 (2019) DLT 614”

• Rejecting the argument and precedents cited by the counsel for the Respondents, the Court remarked that the notification placed reliance on, is applicable to an applicant requesting for issuing passport so as to travel abroad. It is not the case of the Petitioner that he intends to travel abroad. Petitioner is requesting for renewal of passport which he has submitted in Form EA (P)-2 and in the said Form there is no requirement for obtaining permission from the jurisdictional magistrate before whom a criminal case is pending to travel abroad. The said notification applies to an applicant who intends to travel abroad against whom a criminal case is pending.
• Further, the Court holding the submissions untenable, said that, Emergency Certificate applies only to classes of person mentioned expressly under the Schedule. The Court observed, “Petitioner does not fall in the category so as to obtain an Emergency Certificate under the Passport Act, 1967 read with Passport Rules 1980 since no Lookout Circular and Red Corner notice are issued against the petitioner till date.”
• Referring, Satwant Singh Sawhney v. D. Ramarathnam, AIR 1967 SC 1836, the Court reiterated that the objective of Article 21 of the Constitution of India and said, “Petitioner’s right to travel cannot be curtailed on the pretext that a criminal case is pending against him by refusing to renew his passport”
• Furthermore, the Court relied on, Suresh Nanda v. CBI, (2008) 3 SCC 674, wherein it was held that despite criminal case filed against the petitioner therein he was entitled to hold the passport since the passport had not been impounded in accordance with law.

Decision

Allowing the Writ Petition, the Court directed Respondents 1 to 3 to facilitate renewal of the Petitioner’s passport and further directed the petitioner to appear before the Additional Chief Metropolitan Magistrate, Hyderabad within 6 months from the date of renewal with respect to the criminal case pending against him.[Krishna Chiranjeevi v. Union of India, WP No. 9141 of 2020, decided on 1-10-2020]

Sakshi Shukla, Editorial Assistant has put this story together