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2012 DIGILAW 208 (JK)

Iqbal Hussain Mir v. State & Ors.

2012-05-02

MANSOOR AHMAD MIR

body2012
1. The issue involved in the writ petition is whether respondents are within their powers and competence to close the case of the petitioner for want of report without passing speaking order? 2. Respondents 2 and 3 have filed reply. It is apt to reproduce para-2 of the reply herein: "2. In reply to paras 2 to 15 it is submitted that the petitioner had applied for the issuance pf a passport in the year 2008 vide file No. Z-240137. The file was sent for verification of antecedents of the petitioner and a reply in this regard was received from the state CID whereby the report was shown adverse against the petitioner and on receipt of this report, his file was closed and he was intimated accordingly. The details/documents with regtard to the same are available with the office of the respondent No: 1. Therefore, it is submitted that the present writ petition is not maintainable as there is no dereliction of any staturory duty by the answering respondents or infringement of any legal rights of the petitioner. It is submitted that the answering respondent No: 2 can issue a passport only after a thorough verification by the State CID to see that the petitioner does not fall within the grounds mentioned in Section 6 of the Passport Act. Thus, it is clear that the Passport Officer/answering respondent No:1 cannot exercise his discretion but has to go by the report of the State CID. It is submitted that the answering respondents have adhered to all the laws and rules relating to the issuance of passport. There is no dereliction of duty on part of the answering respondent. Since the report as against the petitioner was adverse therefore, the passport could not have been issued. It is submitted that no fundamental rights of the petitioner have been violated." 3. Respondent No. 1 has not filed any reply but it appears that on the basis of recommendation/report submitted by respondent No. 1, respondent No. 3 has closed the case of the petitioner without passing detailed order. 4. Admit. With the consensus of learned counsel for the parties the case is taken up for final disposal. 5. The sole question is that if 'A' commits crime, can 'B' be punished? The reply is in negative. Thus, in the given circumstances the action of the respondents on the face of it is illegal. 4. Admit. With the consensus of learned counsel for the parties the case is taken up for final disposal. 5. The sole question is that if 'A' commits crime, can 'B' be punished? The reply is in negative. Thus, in the given circumstances the action of the respondents on the face of it is illegal. 6. Apex Court in case titled Satwant Singh Sawhney v. D. Ramrathnam, (1967) 3 SCR 525 has held that no person can be deprived of his right to travel except according to the procedure established under law. It is apt to reproduce para-31 of the said judgment herein: "31. For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right." 7. Same view was taken by the Apex court in case titled Maneka Gandhi v. Union of India and another,, (1978) 1 SCC 248 . This Court also while dealing with an identical case, OWP No. 551/2008 titled Sajad Ayoub Bhat v. State and others, has held that it is not permissible under law that when "A" has committed a crime, "B" should be punished. In the instant case, respondents have not alleged anything against the petitioner. Even the Division Bench of this Hon'ble Court in case (LPA) No. 184 of 2009 titled Addl Director General of Police v. Imtiyaz Ahmad Ward & Ors, has taken the same view. 8. Keeping in view the ratio laid down by the apex court and this court coupled with mandate of Clause-C of sub-clause (2) of Section 6 of the Passport Act, read with the reply filed by respondents, the action of respondents is illegal and violative of mandate of Article 21 of the Constitution of India. 9. In the given circumstances, respondents are directed to consider the case of the petitioner in light of the recommendations made by respondent No. 1 read with the judgment and law applicable within four week from today and make decision. It goes without saying that if order goes against the petitioner, he is at liberty to challenge the same. 9. In the given circumstances, respondents are directed to consider the case of the petitioner in light of the recommendations made by respondent No. 1 read with the judgment and law applicable within four week from today and make decision. It goes without saying that if order goes against the petitioner, he is at liberty to challenge the same. 10. Registry to convey the order to respondents and furnish copies to learned counsel for the respondents. 11. Writ petition disposed of along with all connected CMPs.