Ashok Kumar v. State of U.P. Thru. Addl. Chief Secy. Home Deptt. U.P. Lko. and 3 Others

Court No. - 15 Case :- APPLICATION U/S 482 No. - 3846 of 2024 Applicant :- Ashok Kumar Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. U.P. Lko. And 3 Others Counsel for Applicant :- Shivanshu Goswami,Prerna Jalan Counsel for Opposite Party :- G.A.,A.S.G.I. Hon'ble Karunesh Singh Pawar,J.

¶1Heard learned counsel for the applicant, learned A.G.A. for the State and Sri S.B. Pandey, Senior Advocate assisted by Sri Varun Pandey, learned counsel for Union of India.

¶2By means of the instant application filed under Section 482 Cr.P.C., the applicant has sought quashing of the order dated 22.03.2024 passed by the learned Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate arising out of Case Crime No.162 of 2017 : State vs Ghanshyam Ojha & Ors, under Sections 147, 323, 504, 506, 427 IPC, Police Station Alapur, Ambedkar Nagar whereby the application dated 17.02.2024 filed by the applicant seeking permission to obtain passport has been rejected.

¶3Brief facts of the case are that an FIR was lodged on 06.11.2017 as Case Crime No.0162 of 2017 under Sections 147, 323, 504, 506, 427 IPC at Police Station Alapur. It is alleged in the FIR by respondent No.2 that the accused persons, who are pattedars in respect of a disputed land, abused respondent No.2 with malafide intention and also assaulted him, broke his cycle. Mobile phone of respondent No.2 was also snatched and broken. It is further alleged that daughter, Dipika and son, Vikram came to rescue their mother and they were also beaten up and threatened to their lives.

¶4A charge-sheet was filed after investigation. The applicant was enlarged on bail on 26.02.2019. The applicant filed an application dated 17.02.2024 before the learned court below for obtaining a passport as per the guidelines of GSR570(E). The application is on record. Reasons assigned in the application for obtaining passport is for the purpose of obtaining employment opportunities that requires international travel to France and the applicant assured the purpose for which he required the passport is legitimate and, he further undertook that the he is committed to comply the courts' order and further assured that the request for passport will not in any way hinder the progress of trial.

¶5The trial court vide impugned order dated 22.03.2024 has rejected the application.

¶6Reasons assigned by the learned trial court while rejecting the application is that till date charges have not been framed against the applicant, however, the case is pending since 2018. In all likelihood, the charges will be framed in next one year and his personal presence will be required. No other reason has been assigned by the trial court.

¶7Prima facie reasons mentioned by the trial court are strange. The case is pending since 2018 and even after a lapse of 6 years, charges have not been framed.

¶8Learned counsel for the applicant has relied upon the notification of Ministry of External Affairs, New Delhi dated 25.08.1993, which is being quoted hereunder:- "G.S.R. 570(E).--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 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 specified a period for which the passport has to be issued; or

(ii) if no period either for the issue of the passport for the travel abroad is specified in such order, the passport shall be issued for a period of one year;

(iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period of 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 the order;

(b) any passport issued in terms of (a)(ii) and (a)(iii) above can be further renewed fr 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 f 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."

¶9On the other hand, learned counsel for the Union of India has placed a notification of the Government of India dated 25.08.1993 (which has already been quoted above) and an Office Memorandum dated 10.10.2019 (which is being quoted hereunder) issued by the Ministry of External Affairs, Government of India, New Delhi. He has also placed an order passed by co-ordinate Bench of this Court dated

02.02.2024 passed in Application under Section 482 Cr.P.C. No.839 of 2024 and submits that there is no restriction to the learned trial court to direct for grant of permission for issuance of passport. He further submits that as per aforesaid notification and order passed by the co-ordinate Bench of this Court, the impugned order dated 17.01.2024 passed by learned Additional Chief Judicial Magistrate-VI, Lucknow, on its face appears to be passed without application of judicial mind and without considering the aforesaid notification. Thus, the impugned order is liable to be quashed and matter be remanded back to the concerned Magistrate for giving permission to the applicant for renewal of his passport. *** Office Memorandum dated 10.10.2019 issued by the Ministry of External Affairs, Government of India, New Delhi:- No. VI/401/1/5/2019 Government of India Ministry of External Affairs PSP Division Patiala House Annexe, Tilak Marg New Delhi, the ltith October 2019 OFFICE MEMORANDUM Subject: Issue of passports to applicants against whom criminal cases are pending before a court of law in India.

Reference is invited to Notification No. GSR 570(E) dated 25.8.1993 regarding issuance of passports to applicants who have criminal proceedings pending against them and whose applications would attract the provisions of clause (f) of sub-section (2) of Section 6 of the

Passports

Act,

1967.

¶2GSR 570(E) dated 25.8.1993 is reproduced below for reference: "G.S.R. 570(E).--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 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 specified a period for which the passport has to be issued; or

(ii) if no period either for the issue of the passport for the travel abroad is specified in such order, the passport shall be issued for a period of one year;

(iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period of 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 the order;

(b) any passport issued in terms of (a)(ii) and (a)(iii) above can be further renewed fr 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 f 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."

¶3It may be noted that applicants may be refused passports only on grounds mentioned under Section 6(2) of the Passports Act, 1967. Section 6(2)(f) of the Act states that the passport authority shall refuse to issue a 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 arc pending before a criminal court in India. GSR 570(E) dated 25.8.1993 was introduced to give relief to such applicants against whom criminal proceedings are pending before any Court of law in India but who may need to travel abroad for some urgent business. With an undertaking under GSR 570(E) and an order from the Court, an applicant could be issued a short validity passport of one year validity for the period specified by the Court.

¶4It has been noticed that there are an increasing number of references being received regarding passport applications attracting Section 6(2)(f). It has also been brought to Ministry's notice that there are a number of complex issues involved while processing such applications. During the proceedings in a recent court case, the Hon'ble High Court of Delhi in W.P. (CRL) No. 2844/2018 /CRL.M.A. 48674/2018 has directed that guidelines be issued by the Ministry reiterating the procedure for processing of such applications and emphasizing that such applications need to be processed with due care and diligence.

¶5In 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:

(i) The provisions of GSR 570 (E) may be strictly applied in all case. GSR 570 (E) is a statutory notification and hence, forms part of the Rules. It is to be noted that as per Section 5 (2) of the Passports Act, 1967, the passport authority shall be order in writing take a decision whether to issue or refuse a passport, after making such inquiry, if any, as it may consider necessary. Moreover, Section 7 of the Passports Act, provides that a passport or travel document may be issued for a shorter period than the prescribed period if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period. Rule 12 of the Passport Rules, 1980 only states that an ordinary passport shall be in force for a period of 10 years which implies that an ordinary passport cannot be issued beyond a period of 10 years.

(ii) Whenever an applicant is submitting a 'No Objection Certificate' (NOC) from a Court of law in India, the applicant should be advised that undertaking as per GSR 570(E) should be complete in all respects and should mention all the pending criminal cases against the applicant. The undertaking will have a not clearly stating that if any false or incomplete information is submitted by an applicant, then his passport application is liable to be rejected.

(iii) Extant instructions clearly lay down that such applications should be processed on pre-Police Verification

(PV) mode. "Pre-PV" would be mandatory in all cases of applications submitted with GSR 570(E) to ensure that the undertaking submitted by the applicant is properly matched with the criminal cases mentioned in the Police Verification Report (PVR). Hence, such applications should not be accepted under Tatkaal nor such applications be moved to "post-PV" mode or "No-PV" mode without proper justification and approval to be recorded in writing.

(iv) If an undertaking is incomplete or misleading and the applicant is found to have suppressed details of other criminal cases against the applicant, a Show Cause Notice should be issued to the applicant and action initiated against that applicant as per provisions of Section 12 of the Passports Act, 1967. If information that an applicant has obtained a passport by making a false submission or by suppressing material facts comes to light after the passport has been issued, the passport may be impounded or revoked as per provision of Section 10 (3) (b) of the Passports Act, 1967 after following the due procedure.

(v) In case where the first police verification (PV) is 'Adverse', secondary police verification may be generated. While a secondary PV is generated, it should be accompanied by a detailed letter seeking clarification regarding the pending criminal cases against the applicant and the status of these cases. Apart from generating secondary PVR, the passport officers may, if considered necessary, call for discreet enquiry through the police authorities by sending the court order submitted by the applicant or even seek verification from other government agencies/departments, as the case may be.

(vi) In case where the secondary Police Verification is also 'Adverse', it may be examined whether the details brought out in the police report match the undertaking submitted by the applicant. 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.

(vii) If the details given in the police report and the undertaking submitted by the applicant are matching, then the 'No Objection Certificate' issued by a Court of law submitted by the applicant would take precedence over any 'Adverse' report submitted by the police. In such cases, the 'Adverse' report may be overruled with the written approval of the Passport Officer.

(viii) If the details given in the PVR and the undertaking submitted by the applicant are at variance, then a notice may be issued to the applicant calling for clarification and advising the applicant to submit details of all pending criminal cases as well as to submit a revised No Objection Certificate (NOC).

(ix) If it is brought to the notice of the authority that an applicant has criminal proceedings arrayed against applicant before several courts of law, then the applicant may be advised to get NOC from all the concerned court (s). Normally, the Court Order would make a mention of the cases pending against the applicant as well as the prayer made by the applicant. This may be examined along with the undertaking submitted by the applicant and complaints or other court orders, if any, that have been received against the applicant.

(x) It may noted that GSR 570(E) only exempts and applicant from the operation of Section 6 (2)(f) and none of the other sub-sections of Section 6(2) of the Passports Act, 1967.

(xi) A revised Undertaking under GSR 570(E) is attached at Annexure 'A'.

(xii) Passport Officers may issue an internal SOP along the above lines so that there is no confusion in handling of applications that would attract provisions of section 6(2)(f) of the Passports Act, 1967.

¶6The above instructions may be noted for strict compliance with immediate

effect.

Annexure 'A' UNDERTAKING (to be submitted on plain paper as per provisions of GSR-570(E) dated 25.08.1993) I am applying/have applied for passport with the following details:-

(a) Name :..........................................

(b) Date of Birth :.........................................

(c)Father's Name :.........................................

(d)Mother's Name :.........................................

(e) Present Address :..........................................

(f) File No./ARN No. :................................ Date:...............

¶2The Criminal case(s) with following details is/are pending against me: (if more than one case is pending, details of all cases may be provided. Additional sheet giving complete information may be attached)

(a) Case No. :............................................

(b) Name of Court :............................................

(c) Details of Investigating Agency (Please provide details of Police station Investigating Officer, etc.) :.............................................

(d)Last date of hearing :..............................................

(e)Next date of hearing :.............................................

¶3I hereby undertake that I shall, if required by the Court concerned, appear before it at any time during the continuance in force of the passport so issued.

¶4I am aware that it is an offence under the Passports Act, 1967 to furnish any false information or to suppress any material information with a view to obtaining a passport or any other travel document.

¶5The above information given by me in this undertaking and enclosures is true and I am solely responsible for its accuracy. (Signature of the Passport applicant) Name............................................. Mobile No.................................... Date:................ Place:............... ***"

¶10On due consideration to the arguments advanced, perusal of the record so also considering the Articles 19(1)(d) and 21 of the Constitution of India, I am of the view that citizens of the country are entitled for the passport.

¶11In Maneka Gandhi Vs. Union of India (1978) AIR SC 597, the Apex Court has held that having passport is a fundamental right of the citizen of India and a citizen can not be deprived of such fundamental right. It is further observed that for issuance of passport a declaration has to be made by the applicant that the applicant has not been convicted by any Court of Law in India for any criminal offence and has not been sentenced to imprisonment for two years or more than two years with other relevant information. It is not in dispute that the applicant is not a previously convict.

¶12Accordingly, in view of the aforesaid discussion made hereinabove, the impugned order dated 22.03.2024 passed by learned Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Ambedkar Nagar by means of which the application for issuing passport was rejected, is hereby quashed.

¶13The application is allowed with a direction to the learned Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Ambedkar Nagar that in case the applicant moves a fresh application for grant of permission for obtaining passport within a period of 10 days, the same will be decided expeditiously within a further period of 15 days from its filing in light of notification dated

25.08.1993, office memorandum dated 10.10.2019 as well as judgment in the case of Maneka Gandhi (supra). Order Date :- 26.4.2024 prateek High Court of Judicature at Allahabad, Lucknow Bench High Court of Judicature at Allahabad, Lucknow Bench