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2004 DIGILAW 601 (PNJ)

Manjit Singh v. Union of India

2004-05-20

AJAY K.MITTAL, SWATANTER KUMAR

body2004
JUDGMENT Swatanter Kumar, J. - Manjit Singh, resident of village Simbli, District Hoshiarpur, submitted an application to the Regional Passport Office, Jalandhar for issuance of a fresh passport on September 03, 2001. The petitioner has submitted the application complete in all respects and annexed the requisite documents. On March 08, 2002 as the petitioner had not received his passport he approached the office of respondent No. 2 wherein he was informed that the report of the concerned Senior Superintendent of Police on account of police verification had not been received. Vide letter dated November 05, 2002 the petitioner was informed by respondent No. 2 that he should appear before the said authority with Ration Card, School Certificate, Birth Certificate, Electoral Card with copy thereof, any time between 10 A.M. to 12.30 P.M. on any working day. In furtherance of that letter the petitioner claims that he went to the office of respondent No. 2 on November 21, 2002 till today neither the passport has been issued to him nor any order has been passed rejecting his request for issuance of passport. Thus compelling him to approach this Court under Articles 226/227 of the Constitution of India. 2. Separate written statement on behalf of respondent Nos. 1, 2 and 3 respectively have been filed in Court. According to respondent Nos. 1 and 2 it is not disputed that application of the petitioner was received by them on September 03, 2001 on which police verification was called for as the said authority was not having any agency to verify the antecedents as well as the character of the person applying for passport. The Senior Superintendent of Police vide his letter dated October 14, 2002 had informed the authorities that there was a case registered against the petitioner under Section 61(i)(a) of the Punjab Excise Act vide FIR No. 28 dated April 28, 1997 in which he had been convicted to undergo sentence of six months imprisonment and pay Rs. 2000/- as fine. The police authorities had recommended that the passport be not issued to the petitioner. Abiding by this report the passport authorities did not issue passport to the petitioner and the request for issuance thereof has been kept pending. 3. According to the reply which has been filed by the State of Punjab before this Court, the facts can hardly be in dispute. Abiding by this report the passport authorities did not issue passport to the petitioner and the request for issuance thereof has been kept pending. 3. According to the reply which has been filed by the State of Punjab before this Court, the facts can hardly be in dispute. However, it has been stated that against the judgment of conviction and order of sentence, the petitioner had filed an appeal in the Court of Additional Sessions Judge, Hoshiarpur who vide order dated July 12, 1999 released the petitioner on probation on his furnishing probationary bond in the sum of Rs. 1000/- with one surety in the like amount and undertaking to maintain good behaviour and keep peace for a period of one year. Issuance of the letter dated October 14, 2002 is admitted. It is not disputed that the petitioner was serving as driver in Punjab Roadways Depot, Nawansahar. On the basis of the police verification report, it is submitted that the writ petition may be dismissed. 4. According to respondent No. 2 the request of the petitioner for issuance of passport has been kept pending on the basis of the report "police verification report" sent by respondent to respondent No. 2 dated October 14, 2002. This report is factually incorrect. The Senior Superintendent of Police, Hoshiarpur and his subordinate authorities had acted in a mechanical manner and did not care to verify the records. In terms of the reply filed before us now it is the case of the Deputy Superintendent of Police (Headquarters), Hoshiarpur that the petitioner was released on probation for a period of one year. The said period of one year has already expired. Bond would automatically come to an end as neither any complaint was ever received against the petitioner nor was he found guilty of any criminal offence. We fail to understand when this fact was available on the record of respondent No. 3, why factually incorrect report was submitted to respondent No. 2. 5. It is an intentional act on the part of respondent No. 3 or in an administrative lapse. In either of the events, it is not capable of being condoned. Higher officers of the police authorities are expected to act responsibly and maintain proper check and balance to ensure correct police verification which may ultimately form foundation for acceptance or rejection of an application for issuance of fresh passport. In either of the events, it is not capable of being condoned. Higher officers of the police authorities are expected to act responsibly and maintain proper check and balance to ensure correct police verification which may ultimately form foundation for acceptance or rejection of an application for issuance of fresh passport. Dealing with such matters in a routine or mechanical fashion without proper application of mind would amount to circumventing the constitutional mandate of freedom granted to the citizen of India. To undermine such valuable right for lack of proper action is detrimental to the very scheme of fundamental protection available to an individual. 6. A Division Bench of this Court in the case of Ranjit Bajaj v. Regional Passport Authority, Chandigarh, C.W.P. No. 3897 of 2004, decided on May 13, 2004, while referring to the right available to a person under Article 21 of the Constitution of India to travel abroad observed as under :- "In the case of Maneka Gandhi (supra) their Lordships in an uncertain terms held that the expression "personal liberty" in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19(1). The expression is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some such of freedom has even raised to the level of fundamental right. While holding that to travel abroad was a fundamental protection available to a person, their Lordships duly accepted the applicability of principle of reasonableness in placing certain restriction under the due process of law including Section 10(3)(c) of the Act. Of course, it was subjected to the basic rule of law of Audi Alteram Partem. The basic enunciated principles in the afore-referred cases describe a common dictum that freedom to travel abroad is a fundamental protection or right available to a person under the expanded meaning under Article 21 read with Article 19 of the Constitution. The grant of such right is certainly subject to restrictions placed by due process of law. The Passports Act defines a process of law by which the restriction could be placed upon leave to a person to travel abroad and claim protection on the terms and conditions of the Passport issued in the name of the Constitution of India. Issuance of a passport is intended to provide harmony and amicability of international relations. The Passports Act defines a process of law by which the restriction could be placed upon leave to a person to travel abroad and claim protection on the terms and conditions of the Passport issued in the name of the Constitution of India. Issuance of a passport is intended to provide harmony and amicability of international relations. Clause (f) of Sub-section (2) of Section 6 of the Act empowers the Passport Authority to refuse to issue a passport or travel documents for going abroad in the event the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal Court in India. This provision does not offend the constitutional mandate in any way. It also does not vest the authorities with arbitrary power. Pendency of a case before the criminal Court, seen in the light of police report, would be a sufficient ground for the authorities to act and in its wisdom, even decline issuance of the passport. Exercise of such jurisdiction would hardly be open to judicial review unless such decision was pulpably erroneous or was offending the basic rule of law. If the element of arbitrariness ex-facie vitiates the order, then alone it may be a case of interference by the Court in exercise of its writ jurisdiction." 7. It is for respondent No. 3 to take a decision upon its subjective satisfaction while considering the matter objectively, whether it should issue a passport or not on the request of an applicant. Such a discretion must be exercised in consonance with the provisions of the passport Act, 1967. They owe an obligation to the public at large to discharge their duties in terms of the provisions of the said Act in accordance with law and fairly. No justifiable reason can be given why an application should be kept pending for years together. If the competent authority is of the view that in consonance with the provisions of the Act, passport should be declined to an applicant he is bound by law to pass such an order and communicate the same to the person concerned while adhering to the principle of Audi Alteram Partem wherever necessary. If the competent authority is of the view that in consonance with the provisions of the Act, passport should be declined to an applicant he is bound by law to pass such an order and communicate the same to the person concerned while adhering to the principle of Audi Alteram Partem wherever necessary. To grant or refuse to grant is the discretion of the authority to be exercised in consonance with the settled principles of law but to keep the matter in abeyance would be an act which is bound to invite judicial castism on all quarters. The authorities are duty bound to apply their mind to the facts and circumstances of each case and take decision promptly without any unnecessary delay. In the case of Ranjit Bajaj (supra), the Court held as under :- "However, we must also notice a pertinent aspect relatable to such cases. The authorities have a duty to strike a balance between the restricted freedom available to the petitioner to travel abroad and the nature and grievousness of the crime committed by him. The development of law, which is its basic and essential feature, has given wide magnitude to the expression of freedom. Enlargement of the concept of freedom by judicial pronouncement has an inbuilt effect of requiring the authorities to examine the matter with a greater caution and care rather than mechanically reject request for issuance of passport. To illustrate this view we may refer to a case where a person may be involved in a minor offence of traffic regulations and claims to be tried in the Court rather than paying fine at the spot. A case against him being registered under Section 11d read with Section 183 of the Motor Vehicles Act, 1988 and even Section 323 of the Indian Penal Code simplicitor and challan presented in Court, should such person be denied issuance of a passport merely because there is a case pending against him in the criminal court, will be a matter of serious concern for the passport authorities. In such cases, it will be expected of the passport authorities to consider the application for renewal/issuance of a passport objectively and in consultation with the police authorities so as to prevent injustice being done to an applicant. In such cases, it will be expected of the passport authorities to consider the application for renewal/issuance of a passport objectively and in consultation with the police authorities so as to prevent injustice being done to an applicant. Default in such objectivity is in all probabilities likely to result in infringement of a fundamental protection and liberty granted to the applicant under the law of the land. The purpose for which the petitioner had prayed for issuance of the passport has lost its significance as the event at Bangkok itself is over." 8. Reverting back to the facts of the present case there is no denying the fact that when the police verification report was sent by respondent No. 3 to respondent No. 2, the petitioner was not undergoing any sentence or conviction. In fact he had been released on probation by the Court of competent jurisdiction. The period of bond had already expired in the year 2000. The report submitted by respondent No. 3 cannot be justified. In fact the same is an unfair exercise of power. Keeping the application of the petitioner in abeyance by respondent No. 2 is again not permissible on any ground as is clear from the records provided before us. The police authorities have acted unfairly and error has been personified by inaction on the part of respondent. The present writ petition thus is a glaring example of a helpless decision by which a right has been denied without any plausible cause. We thus allow this writ petition and direct respondent No. 2 to issue passport to the petitioner unless there are some other plausible grounds and reasons in accordance with the provisions of the Act for denying such benefit to the petitioner. 9. The writ petition is allowed with costs of Rs. 5000/- which in the first instance will be paid by the State of Punjab as well as the Regional Passport Officer in equal shares and then the amount so paid shall be recovered from the erring officers of the police department as well as of the passport office after granting them an opportunity in accordance with law, within a period of three months from the date of pronouncement of this judgment. 10. One of the basic obligation of a welfare State is to prevent unnecessary litigations in Courts. 10. One of the basic obligation of a welfare State is to prevent unnecessary litigations in Courts. The administrative procedure should be mutable to the fact of the changing demands of the public so as to tackle the pervasive difficulties in effective implementation of its scheme and statutory duties. The circumstances aforenoticed compel us to observed that all is not well in the affairs of the concerned departments and requires immediate attention of the higher authorities. The higher authorities are most competent to examine their procedures and issue such directions which would serve as linchpin to proper administration and functioning of the departments concerned. Thus, we direct the Secretary, Ministry of External Affairs, Govt. of India, New Delhi as well as the Director General of Police for the States of Punjab and Haryana and Inspector General of Police, Chandigarh to issue upon consideration such directions as they deem necessary to ensure that the applications submitted by the public at large for issuance of passport in accordance with the provision of the Act are dealt with and disposed of finally expeditiously and preferable within a time bound programme. The authorities must advert themselves also to the fact that the police should apply its mind and make correct reports to the passport authority on the record available with the department. The applications should be processed properly and final orders granting the passport or declining the request for issuance of the passport upon due application of mind should be passed by the passport authorities. Orders so passed, essentially must be conveyed to the applicant. Such directions and or instructions must be issued by the concerned authorities at the earliest. This writ petition is accordingly allowed in the above terms and with the observations afore-recorded. The compliance report shall be submitted by the concerned authorities to the Registry of this Court within three months from the date of pronouncement of the judgment. Petition allowed.