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2017 DIGILAW 2003 (RAJ)

BALJINDER SINGH v. UNION OF INDIA

2017-09-07

VIJAY BISHNOI

body2017
JUDGMENT : Vijay Bishnoi, J. The matter comes up for consideration of an application (Applw No. 4523/2017) preferred on behalf of the petitioner with a prayer for early listing of the case. 2. With the consent of the parties, the matter is heard finally. Hence, no need to pass any order on the application (Applw No. 4523/2017) for early listing of the case. The application (APPLW No. 4523/2017) is disposed of. 3. This writ petition has been filed by the petitioner with a prayer to issue a direction to the respondent-passport authorities to issue passport to him immediately. 4. The facts, which are in dispute, are that the petitioner has applied for issuance of passport with the respondent-passport authorities, however, the respondent-passport authorities vide communication dated 10.04.2017 has informed the petitioner that his file has been closed on account of old criminal case against him and he was advised to seek permission of the Court for issuance of passport to him. 5. Learned counsel for the petitioner has contended that in a criminal case, the petitioner was convicted by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Cases), Sri Ganganagar (hereinafter to be referred as 'the trial court') vide judgment dated 29.11.2016 and instead of sentencing him, the trial court has ordered for releasing him on probation for a period of one year. It is contended by the learned counsel for the petitioner that on account of release of the petitioner on probation, the respondent-passport authorities can refuse to issue passport to him as per section 12 of the Probation of Offenders Act, 1958 (hereinafter to be referred as 'the Act of 1958'), which clearly provides that a person released on probation under the provisions of Sections 3 and 4 of the Act of 1958 shall not suffer disqualification attaching to a conviction of an offence. Learned counsel for the petitioner has, therefore, submitted that the action of the respondent-passport authorities of not issuing passport to the petitioner is illegal and a direction be issued to the respondent-passport authorities to issue passport to the petitioner immediately. 6. Per contra, learned counsel Ms. Apurva Raj Mathur for Mr. Learned counsel for the petitioner has, therefore, submitted that the action of the respondent-passport authorities of not issuing passport to the petitioner is illegal and a direction be issued to the respondent-passport authorities to issue passport to the petitioner immediately. 6. Per contra, learned counsel Ms. Apurva Raj Mathur for Mr. Sanjeet Purohit appearing for the respondents has argued that as the petitioner was released on probation by a competent criminal court, the respondents have all the authority to close the application of the petitioner for issuing passport to him till he obtained permission from the Court, which has convicted him and released him on probation or till the expiry of the period of probation. 7. In support of the above argument, learned counsel for the respondents has placed reliance on the decision of Punjab and Haryana High Court rendered in Dalwinder Singh v. UOI [CWP No. 1511/2011(O&M)] decided on 13.10.2011 and argued that the Punjab and Haryana High Court while dealing with the Section 12 of the Act of 1958 has held that in a case of a person, released by a competent criminal court on probation, the Section 12 of the Act of 1958 could not be attracted and passport department has every right to refuse to issue passport to such person till expiry of probation period. 8. Heard learned counsel for the parties and perused the material available on record as well as the judgment passed by the Punjab and Haryana High Court in Dalwinder Singh's case (supra). 9. The Punjab and Haryana High Court in Dalwinder Singh's case (supra) while dealing with the similar issue has held as under:- "5. A proper understanding to the effect of a release under probation could come only be referring to Section 4, which reads as under:- "Power of Court to release certain officers on probation of good conduct. 9. The Punjab and Haryana High Court in Dalwinder Singh's case (supra) while dealing with the similar issue has held as under:- "5. A proper understanding to the effect of a release under probation could come only be referring to Section 4, which reads as under:- "Power of Court to release certain officers on probation of good conduct. (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under subsection (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under subsection (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned." This Section makes it clear that the Court could order release on probation only if the offender or surety has a fixed place of residence over which the Court has effective jurisdiction. A person, who takes a passport and leaves the country actually goes outside the jurisdiction of the jurisdictional Court which has ordered the release. Subsection (3) empowers supervision by a probation officer. This will have to cease, if he goes out of the country. 6. Yet another section is of vital relevance. Section 9 makes possible cancellation of release order on failure to observe conditions and take him back to judicial custody by appropriate sentence. Section 9 is reproduced as follows :- "9. Procedure in case of offender failing to observe conditions of bond. (1) If the Court which passes an order under section 4 in respect of an offender or any court which could have dealt with the offender in respect of his original offence has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any, requiring him or them to attend before it at such time as may be specified in the summons. (2) The court before which an offender is so brought or appears may either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing. (3) If the court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith- (a) sentence him for the original offence; or (b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees. (4) If a penalty imposed under clause (b) of subsection (3) is not paid within such period as the court may fix, the court may sentence the offender for the original offence. Issue of a passport with a prospect of flight out of country will render nugatory these provisions. Section 12 itself could be attracted only after the period of probation has expired. 7. Under the circumstances, it will be inappropriate to order the issue of passport. The petitioner may however renew his application after the period of probation. The writ petition is disposed of as such." 10. I am in perfect agreement with a view taken by the Punjab and Haryana High Court in in Dalwinder Singh's case (supra), hence, the prayer of the petitioner to issue a direction to the respondent-passport authorities to issue passport to him immediately is not liable to be accepted. 11. It is informed that the probation period of the petitioner is going to be expired on 29.11.2017. 12. In such circumstances, if the petitioner applies for passport, after expiry of the period of probation, the respondent-passport authorities shall consider the request of the petitioner strictly in accordance with law. 13. With these observations, this writ petition is dismissed.