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2019 DIGILAW 503 (ORI)

Ballav Kr @ Sriballav Kar v. Govt Of India

2019-08-05

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. In this application under section 482 of Cr.P.C., the petitioner Ballav Kar @ Sriballav Kar has challenged the impugned order dated 20.12.2018 of the learned J.M.F.C., Jagatsinghpur in G.R. Case No.320 of 2004 in rejecting the petition filed by the petitioner for issuance of no objection certificate in order to obtain the passport in his favour to go abroad i.e. Geneva. While rejecting the petition, the Court has observed that this is a year old case of 2004 and six witnesses out of fifteen charge sheeted witnesses have already been examined and if the petition is allowed, the petitioner may abscond to foreign land or he may not be available in person or his presence may not be procured promptly during vital stages of the criminal proceedings such as accused statement and pronouncement of judgment. It is further mentioned that the particular time limit during which the petitioner would visit Geneva, the purpose and urgency of visit to the foreign land, the exact place of stay, the name of the course of study and the duration of study that the petitioner's son is pursuing at Geneva have not been furnished. The said case arises out of Paradeep P.S. Case No.163 of 2004. 2. Learned counsel for the petitioner submitted that the case was instituted in the year 2004 and the petitioner is facing trial for commission of offences under sections 419, 420, 468, 471, 109 read with section 34 of the Indian Penal Code. The allegation against the petitioner and other co-accused persons is that they committed fraud and cheating of compensation of whopping money to the tune of Rs.6,57,040.00 disbursed by the Government in land acquisition case. It is contended that there is inordinate delay in disposal of the trial of the case and as reflected in the order dated 20.12.2018, only six witnesses have been examined out of fifteen charge sheeted witnesses till the impugned order was passed and thereafter, the case has suffered number of adjournments but no further witness has been examined. He has filed the certified copy of the up-to-date order sheet which is taken on record. Relying on the decision of this Court in the case of Arjuna Charan Das Vrs. He has filed the certified copy of the up-to-date order sheet which is taken on record. Relying on the decision of this Court in the case of Arjuna Charan Das Vrs. State of Orissa, 2017 (2) OrissaLR 13, it is contended that the impugned order should be set aside and necessary permission and no objection certificate is to be granted to the petitioner so that it can be produced before the passport authorities. 3. 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. 4. Mr. 4. Mr. Anup Kumar Bose, learned Assistant Solicitor General appearing for Union of India 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 super session 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. 5. 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. 6. Therefore, it is apparent that if the petitioner applies for issuance 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 7. In the case of Deepak Dwarkasingh Chhabria Vrs. Union of India, 1997 AIR(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. 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." 8. In the case of Dhiren Baxi Vrs. Regional Passport Officer, Ahmedabad, 2003 AIR(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. 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. 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. 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." 9. Adverting to the contention raised by the learned counsel for the respective parties, since the petitioner is no way responsible for delay in the trial of the case and he is regularly taking steps in the case and there is no material to show that he will abscond and will not be available in Court as and when his presence would be necessary at the vital stages of the criminal proceedings and since the petitioner is a permanent resident of village Paradeepgarh, I am of the humble view that the learned Magistrate is to reconsider the petition of the petitioner keeping in view of the relevant provisions under the Passport Act, 1967 and the Rules framed thereunder as well as the contents of the passport application form and supplementary form and if the Court decides to issue no objection certificate or necessary permission for availing the passport, the fixation of the period can also be considered by the concerned Court. 10. Accordingly, the impugned order is set aside and the matter is remanded back to the learned J.M.F.C. (P), Kujang. With the aforesaid observation, the CRLMC application is disposed of.