Manish Bhandari v. Union of India Thru. Chief Passport Office, Ministry of External Affairs, New Delhi and 2 Others

Court No. - 12 Case :- CRIMINAL MISC. WRIT PETITION No. - 7072 of 2024 Petitioner :- Manish Bhandari Respondent :- Union Of India Thru. Chief Passport Office, Ministry Of External Affairs, New Delhi And 2 Others Counsel for Petitioner :- Anil Mishra,Rajat Raj Narayan Bajpai,Vineet Kumar Verma Counsel for Respondent :- A.S.G.I.,G.A. Hon'ble Saurabh Lavania,J.

¶1Heard learned counsel for the petitioner as well as Sri Surya Bhan Pandey, learned Sr. Advocate and Deputy Solicitor General of India assisted by Sri Varun Pandey, learned counsel for the Union of India and Sri Ajay Kumar Srivastava, who appeared for opposite party No.2-State of U.P. and perused the record.

¶2By means of this petition, the petitioner has sought following main reliefs:- "1. To Issue a writ in nature of certiorari to quashing the impugned order dated 06.05.2024 (contained as Annexure No. 1) passed by the Special Judge, Prevention of Corruption Act, Court No. 4, District Gorakhpur in the miscellaneous case No.84/2024 pending in the session trial no. UPGK-01-11186 of 2017 the case titled as State of U.P. Vs. Manish Bhandari u/s 406/120-B registered at Police Station, Gulharia, Distt. Gorakhpur arising out in the case crime no. 428/2017 dated 23.8.2017 by which the application to issue a passport or granting of permission of petitioner's passport in persuasion of order dated 28.03.2022 in term of provision of G.S.R. 570(E) dated 25.08.1993. (contained with Annexure no. 3)

¶2To issue a writ, order, direction in nature of mandamus commanding the opposite party No. 3 to renew/issue a fresh passport to petitioner in persuasion of impugned 31.07.2020 passed by O.P. no.3 as well as appellate order dated 28.03.2022 in term of provision of G.S.R. 570(E) dated 25.08.1993 as per the Passport Act 1967 and rules itself in the interest of justice."

¶3It is stated that criminal proceedings against the petitioner are pending before the Special Judge, Prevention of Corruption Act, Court No. 4, District Gorakhpur (in short 'trial Court') in S.T. No. UPGK-01-11186 of 2017, Crime No. 428/2017 (State of U.P. Vs. Manish Bhandari) under Section 406/120-B IPC, P.S.- Gulharia, District-Gorakhpur.

¶4It is stated that in the said case, on account of the fact that the passport bearing No. Z2704183 issued in favour of the petitioner was valid upto 27.11.2023 and this passport was impounded.

¶5It is stated that, after contesting on the issue of impounding of passport, the petitioner preferred an application seeking permission for re-apply/re-issue of passport, before the Court concerned, as the permission as per law is required, which is also evident from the order dated 28.03.2022 (Annexure No. 3 to this petition) passed in the appeal of the petitioner preferred under Section 11 of the Indian Passport Act, 1967 (in short "Act"), and thereupon, the trial Court passed the impugned order dated 06.05.2024, whereby, rejected the said application.

¶6Learned counsel for the petitioner has placed reliance on the order dated 26.04.2024 passed in Application under 482 No. 3846 of 2024, Ashok Kumar Vs. State of U.P. and 3 others, the judgment and order dated 02.02.2024 passed in Application U/s 482 No. 439 of 2024, Sahanur & Another Vs. Union of India & 2 others and order dated 27.05.2024 passed in Application under 482 No. 4894 of 2024, Faraz Habib Vs. State of U.P. and based upon the same he submits that the trial court also failed to take note of the settled legal proposition on the subject of re-apply/re-issue of the passport during pendency of the criminal trial and relevant notifications issued on the subject covered under the Act.

¶7Learned counsel for the petitioner has also placed before this Court 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."

¶8Thus, learned counsel for the petitioner submits that the impugned order dated 06.05.2024 is totally illegal, perverse and arbitrary as the same is passed without application of judicial mind and also without considering the notification of Ministry of External Affairs, Government of India, New Delhi, therefore, the same is liable to be quashed.

¶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 based upon the notification it is submitted that there is no restriction to the learned trial court to direct for grant of permission for renewal of passport. He further submits that as per aforesaid notification(s) and order passed by the co-ordinate Bench of this Court, the impugned order dated 06.05.2024 passed by the trial Court, on its face appears to be passed without application of judicial mind and without considering the aforesaid notification (s). Thus, the impugned order is liable to be quashed and matter be remanded back to the concerned Magistrate for passing a reasoned and speaking order afresh on the application of the petitioner in issue.

¶10Office Memorandum dated 10.10.2019 issued by the Ministry of External Affairs, Government of India, New Delhi is extracted hereunder:- "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:...............

¶11Learned counsel for the petitioner also submitted that in terms of relevant provisions of Act including Section 6 and 10 of the Act and Rule 12 of the Rules made thereunder, namely, Passport Rules, 1980, the Magistrate ought to have granted permission for renewal of passport for a period of ten years, after taking note of the reasons indicated in the application in issue preferred by the petitioner for extension of validity of the passport of the petitioner bearing No. Y111037.

¶12Learned Counsel for the petitioner also placed reliance on the judgment dated 14.03.2024 passed by the Telengana High Court in the case of Venkata Siva Kumar Yadhanapudi vs. Union of India; (2024) SCC OnLine TS 402, judgment of Division Bench of Bombay High Court passed in Narendra K. Ambwani Vs. Union of India, 2014 SCC Online Bom 356 and Mr. Samip Nitin Ranjani Vs. Union of India and others, 2016 SCC Online Bom 14539.

¶13Considered the aforesaid and perused the record.

¶14Considering all the facts and circumstances of the case and the judgments referred by the learned counsel for the parties as also the statutory provisions including Section(s) 6 and 10 of the Act and Rule 12 of the Rules and also the notification(s) on the issue and also the order impugned in the present petition, this Court finds that while passing the impugned order dated 06.05.2024, the trial Court has not taken note of relevant provisions and also the notification(s) referred above, as also the specific pleadings of the petitioner in his application in issue in its true spirit.

¶15Accordingly, the instant writ petition is allowed. The impugned order dated 06.05.2024 passed by the trial Court, by means of which application for re-apply/re-issue of passport of petitioner has been rejected, is hereby set aside and the matter is remanded back to the court concerned to pass fresh reasoned and speaking order on the application in issue within a period of one month from the date of production of certified copy of this order.

¶16With aforesaid, the present petition is allowed. No order as to cost(s). Order Date :- 13.12.2024 Arun/- High Court of Judicature at Allahabad, Lucknow Bench