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2017 DIGILAW 187 (ORI)

Arjuna Charan Das v. State of Orissa

2017-02-20

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Arjuna Charan Das has filed this criminal revision petition challenging the impugned order dated 21.12.2016 passed by the learned J.M.F.C., Chandikhole in G.R. Case No.1201 of 2015 arising out of Balichandrapur P.S. Case No. 173 of 2015 in rejecting the petition filed by the petitioner for permission for renewal of his passport on the ground that the petitioner is alleged to have committed offences under sections 498-A/494/34 of the Indian Penal Code read with section 4 of the Dowry Prohibition Act which was initiated at the instance of his wife and that the petitioner has not come to the picture in the case nor appeared in the case nor yet arrested and he may abscond. 2. Learned counsel for the petitioner Mrs. Sujata Jena challenging the impugned order submitted that the petitioner is an IT Professional working as a Senior Software Engineer in MPHASIS and posted at Bangalore and as an IT professional, he was holding a passport which expired on 12.02.2017. It is further contended that as per the notification issued by the Ministry of External Affairs, Government of India dated 25.08.1993 vide G.S.R. 570(E) in exercise of the powers conferred by clause (a) of section 22 of the Passports Act, 1967, any passport issued can be further renewed only on the basis of the fresh order of the concerned Court where the criminal case is pending against the applicant. Learned counsel further submitted that the petitioner is an accused in Balichandrapur P.S. Case No.173 of 2015 which was initiated on the basis of the First Information Report lodged by his wife before the Inspector in Charge of Balichandrapur Police Station on 03.12.2015 and a case under sections 498-A/494 read with section 34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act was registered. During course of investigation, apprehending arrest, the petitioner approached this Court in an application under section 438 of Cr.P.C. in ABLAPL No.19709 of 2015 and vide order dated 11.04.2016, the anticipatory bail application was allowed and the petitioner was directed to be released on bail by the Investigating Officer in the event of his arrest. During course of investigation, apprehending arrest, the petitioner approached this Court in an application under section 438 of Cr.P.C. in ABLAPL No.19709 of 2015 and vide order dated 11.04.2016, the anticipatory bail application was allowed and the petitioner was directed to be released on bail by the Investigating Officer in the event of his arrest. Learned counsel for the petitioner contended that the ground of rejection of the petition by the learned Magistrate is illegal and erroneous and since the petitioner is on anticipatory bail and final form has not yet been submitted and he has not received any summons from the Court, there was no justification for his appearance before the learned Magistrate. She further contended that there was no material before the Magistrate to observe that the petitioner may abscond. Learned counsel for the petitioner further contended that in view of the provisions under section 6(2)(f) of the Passports Act, 1967, the passport authority shall refuse to issue passport, inter alia, if any proceeding in respect of an offence alleged to have been committed by the applicant is pending before the criminal Court in India. The Passport Application Form which was issued by the Government of India, Ministry of External Affairs as per form No. EA (P)-13 indicates in Column No.8 that the applicant has to indicate if he was ever charged with criminal proceedings or any arrest warrant/summon is pending before a Court in India and if the answer is ‘yes’, then the applicant will fill in Column No.7.1 of the Supplementary Form which indicates that if there are any criminal proceedings/warrant pending against the applicant then written permission from the Court is to be attached to depart from India. Learned counsel for the petitioner contended that in view of such provision, the learned Magistrate should not have rejected the petition filed by the petitioner seeking permission for renewal of his passport which has resulted in causing serious prejudice to the petitioner and therefore, the impugned order is not sustainable in the eye of law and the same should be set aside. 3. Mr. 3. Mr. Anup Kumar Bose, learned Assistant Solicitor General, Union of India for the State of Odisha produced the notification of the Government of India, Ministry of External Affairs, New Delhi dated 25.08.1993 wherein it is indicated that 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, exempted 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, from the operation of the provisions of Clause (f) of sub-section (2) of section 6 of the said Act, if they produce orders from concerned Court permitting them to depart from India subject to certain conditions which are as follows:- (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 specifies a period for which the passport has to be issued; or (ii) if no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period one year, (iii) if such order gives permission to travel abroad for a period less than one year but does not specify the period 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 for 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 of 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. Learned counsel for the Union of India further contended that there is a distinction between reissue and renewal of the passport as per Passport Manual, 2010 issued by Government of India, Ministry of External Affairs, New Delhi. Passports are reissued on expiry of final validity which can be done from one year before expiry on exhaustion of visa pages, damage or loss, appearance/ particulars change, etc. whereas renewal on the other hand, is on passports issued for short periods for reasons such as pending asylum, illegal immigrants, pending Court cases which is to done on production of permission of the Court to leave India and lack of PISON details in the event of loss/damage or incomplete data in PISON. It is further contended that whenever a person holding a short validity passport applies for renewal, a new passport needs to be issued. 4. Thus in view of the provisions of the Passports Act, 1967 and the contents of the application forms for issuance of the passport, notification issued by the Government of India, Ministry of External Affairs, New Delhi and Passport Manual, 2010, it is clear that if any criminal proceeding is pending against the applicant then he has to produce the written permission from the concerned Court to depart from India. Therefore, it is apparent that if the petitioner applies for reissuance of the passport then the passport issuing authorities are to follow the procedure laid down under the Passports Act, 1967 and in that event as per the provision under column no.7.1 of the Supplementary Form, permission of the Court would be necessary which is to be attached with the passport application form. It is obvious that without the written permission from the Court, the passport authority shall refuse to issue the passport. It is stated by the learned counsel for the petitioner that the petitioner has already applied for reissuance of the passport before the appropriate authority which is pending. 5. In the case of Deepak Dwarkasingh Chhabria Vs. Union of India reported in AIR 1997 Bom 181, it was observed as under:- “10. In view of the aforesaid notifications by the Central Government, it is clear that the citizens against whom criminal cases are pending are made exempt from the operation of Section 6(2)(f) provided they produce orders from the concerned Court permitting them to travel abroad subject to the terms and conditions mentioned in the notifications. In other words, an application of passport is not liable to be refused on the ground of pendency of criminal case if the applicant obtains permission from the concerned Criminal Court for travelling outside India. The passport authority, therefore, cannot reject the application for passport mechanically on the ground of pendency of criminal case against the application. It will be the duty of the passport authority to bring the relevant notification to the notice of the appellant to apply to the concerned Criminal Court, for permission to travel abroad. If the applicant obtains such permission from the Criminal Court where his case is pending, the passport authority will be duty bound to issue the passport in terms of the order of the Criminal Court subject to the conditions of the notification.” In the case of Dhiren Baxi Vs. Regional Passport Officer, Ahmedabad reported in AIR 2003 Guj 108 , it was observed as under:- “10. Considering the aforesaid notification issued by the Central Government, as well as considering the judgment of the Bombay High Court, in my view, this petition is required to be allowed by giving opportunity to the petitioner to approach the concerned Magistrate with an appropriate application for permitting him to go abroad for a particular time limit. Considering the aforesaid notification issued by the Central Government, as well as considering the judgment of the Bombay High Court, in my view, this petition is required to be allowed by giving opportunity to the petitioner to approach the concerned Magistrate with an appropriate application for permitting him to go abroad for a particular time limit. If the concerned Magistrate permits the petitioner to go abroad for a particular period on the basis of such order, it will be open for the petitioner to request the passport authority to grant him passport for a limited period, during which he is permitted to go abroad. The petitioner may accordingly approach the concerned criminal court, with a prayer to permit him to go abroad and if any such application is preferred, the concerned criminal court may decide such application in accordance with law. If the concerned Criminal Court, before whom the criminal cases are pending, permits the petitioner to go abroad, the passport authority may pass appropriate order in the matter of issuing passport to the petitioner in terms of the order of the criminal court and subject to the conditions laid down by the Notification. As observed by the Bombay High Court, the passport authority, in future cases of a similar nature, may inform the applicants, against whom any criminal case is pending, about the Notification of the Central Government and may inform such applicant that they may approach the concerned and if any such order is passed by the Magistrate, permitting such applicant to go abroad, the Passport Authority may dispose of such applications in view of the Notification and in view of the provisions of the Passports Act. It is clarified that in case the criminal court permits the petitioner to go abroad, the passport authority shall act on the basis of such report for the purpose of issuing passport. The passport may not be refused solely on the ground of pendency of the present criminal cases in case the Magistrate so permits. It is clarified that if there are other grounds available to the passport authority to refuse the passport, it is for the authority to consider the same in accordance with law. The passport may not be refused solely relying on the present criminal cases, which are pending against the petitioner, in case permission is granted by the Magistrate, as indicated above. The passport may not be refused solely relying on the present criminal cases, which are pending against the petitioner, in case permission is granted by the Magistrate, as indicated above. It is also clarified that whether such application should be granted or not is within the jurisdiction of the competent Criminal Court and it is for the concerned Magistrate to decide such application, if at all the same is received from the present petitioner and it is for the Magistrate to decide the same in accordance with law and this Court has not expressed any opinion on the aforesaid subject.” 6. Adverting to the contentions raised by the learned counsels for the respective parties, I am of the view that the learned J.M.F.C., Chandikhol was not justified in rejecting the petition filed by the petitioner seeking permission for renewal of his passport. When the petitioner has already been released on anticipatory bail, the question of his arrest does not arise and even if he is arrested, he shall be released on bail subject to the terms and conditions of the anticipatory bail order. Similarly since final form has not yet been submitted in the case on completion of investigation and the petitioner is not served with the summons in the case as contended by the learned counsel for the petitioner, the question of personal appearance of the petitioner before the learned Magistrate is not required. The petitioner has already appeared in the case through his counsel. The case against the petitioner arises out of a matrimonial dispute. The petitioner is a permanent resident of village Kalashree Gopalpur under Balichandrapur police station in the district of Jajpur and he is a Senior Software Engineer serving in MPHASIS and posted at Bangalore and therefore, there was nothing before the Magistrate to observe that the petitioner may abscond. It appears that the impugned order has been passed in a slipshod manner without proper application of mind. Therefore, I am of the view that the learned Magistrate shall reconsider the petition of the petitioner keeping in view of the relevant provisions under the Passports Act, 1967 and the Rules framed as well as the contents of the Passport Application Form and Supplementary Form and decide as to whether written permission is to be granted to the petitioner to travel abroad by reissuance of the passport. With the aforesaid observation, the Criminal Revision petition is allowed and the impugned order dated 21.12.2016 passed by the learned J.M.F.C., Chandikhol is hereby set aside. The learned Magistrate shall take the decision on the petition, in accordance with law as expeditiously as possible preferably within a period of four weeks from the date of production of the certified copy of this judgment. Accordingly, the CRLREV is allowed.