2021 (9) TMI 1385 - HC - Indian Laws

Petitioner Directed to Seek Magistrate Approval for Passport, Authority Can Act Independently

The court disposed of the writ petition by directing the petitioner to approach the jurisdictional Magistrate for appropriate orders if the final report ... Application for issuance of a passport - It was alleged in the crime that petitioner had impersonated the defacto complainant and travelled with the defacto complainant's passport from Sharjah, after taking possession of the passport of the complainant by committing a breach of trust - HELD THAT:- It is indubitable that the right to travel beyond the frontiers of our country is a facet of personal liberty under Article 21 of the Constitution of India - However comprehensive the said liberty be, it is still subject to 'procedure established by law'. Thus after the enactment of the Act in 1967, a law came into existence which enabled denial merely on the ground of existence of a criminal proceeding. Another facet of Article 21 that encapsulates every law, laying down a procedure to deprive the personal liberty of a person is the triplet of 'just, fair and reasonable'. Thus to make the deprivation of the personal liberty of the right to travel abroad, just, fair and reasonable, the Government of India in exercise of the powers under section 22 of the Act, issued a notification, which is statutory in character, exempting citizens of India against whom criminal proceedings are pending before a criminal court from the operation of section 6(2)(f) of the Act on condition that the applicant produces orders from the Court concerned permitting to depart from India. The courts have been constantly holding that the pendency of a criminal proceeding is not a bar for obtaining a passport or for travelling abroad. However, the only requirement in such cases is that the court where the criminal proceeding is pending, must grant permission for the period of such travel or the period for which the passport can be issued . Based upon such permission, the passport issuing authority can issue the requisite document enabling travel. While granting permission, the criminal courts will do well to bear in mind that the ultimate aim of granting permission is to balance the competing claims of fundamental right to travel abroad and the need to ensure the presence of the accused during trial. Other reasonable safeguards to ensure the presence of the accused during trial can also be incorporated into the order granting permission, if the circumstances warrant it - Petition disposed off. Issues Involved:1. Challenge to the communication from the Regional Passport Officer regarding shortcomings in the passport application.2. Issuance of a fresh passport in accordance with Government of India circulars.3. Impact of pending criminal proceedings on passport issuance.4. Legal provisions under the Passports Act, 1967.5. Court's parameters for granting permission for passport issuance in cases with pending criminal proceedings.Issue-wise Detailed Analysis:1. Challenge to the Communication from the Regional Passport Officer:The petitioner challenged the communication issued by the Regional Passport Officer, which informed him of the shortcomings in his passport application. The petitioner contended that despite having proper police clearance and the closure of the crime registered against him, the passport authorities were harassing him by referring to those false crimes.2. Issuance of a Fresh Passport:The petitioner sought relief for the issuance of a fresh passport in accordance with the circulars issued by the Government of India. He argued that he had applied for a fresh passport on 26.11.2012, but due to the registration of a crime, his application was adversely affected, and the file was closed. Despite reapplying after five years and obtaining a police clearance, the passport authorities cited shortcomings in his application.3. Impact of Pending Criminal Proceedings on Passport Issuance:The court acknowledged that the petitioner admitted a crime was still pending against him but at the investigation stage. The court considered the circumstances under which a passport could be denied to a citizen of India, particularly under section 6(2)(f) of the Passports Act, 1967, which mandates refusal of a passport if 'criminal proceedings are pending' before a criminal court in India.4. Legal Provisions under the Passports Act, 1967:The court discussed the relevant provisions of the Passports Act, 1967, particularly sections 5 and 6, which deal with the application and refusal of passports. Section 6(2)(f) specifically addresses the refusal of passports to applicants with pending criminal proceedings. The court also referred to the Government of India's notification GSR 570(E) dated 25.8.1993, which exempts citizens with pending criminal proceedings from the operation of section 6(2)(f) if they produce court orders permitting them to depart from India.5. Court's Parameters for Granting Permission for Passport Issuance:The court laid down parameters for criminal courts to consider while granting permission for passport issuance to individuals with pending criminal proceedings. These parameters include:- The stage of the criminal proceeding and the expected duration of the trial.- The criminal antecedents and past conduct of the accused.- The nature and gravity of the crime, with special consideration for terrorism and smuggling.- Limiting the permission period in heinous crimes.- Assessing the chances of the accused fleeing or evading trial.- Ensuring the presence of the accused during trial through conditions like providing the address abroad.- Fixing the period for which the accused can travel abroad if not specified by the Magistrate.The court emphasized that these parameters aim to balance the fundamental right to travel abroad with the need to ensure the accused's presence during trial.Conclusion:The writ petition was disposed of with the observation that the petitioner should approach the jurisdictional Magistrate to obtain appropriate orders if the final report had been filed and cognizance taken. If the final report had not been filed, the Passport Authority could decide on the passport issuance without needing permission from the Magistrate. The petitioner was given the liberty to file an explanation to the communication within ten days, and the second respondent was directed to pass appropriate orders within four weeks.