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2022 DIGILAW 2514 (RAJ)

Narender Kumar Aggarwal v. State Of Rajasthan

2022-09-23

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - By way of the present petition filed under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has challenged the order dated 04.10.2021, passed by the learned Additional Chief Judicial Magistrate, Sadulshahar, Sriganganagar (hereinafter referred to as "the trial Court"), whereby, petitioner's application dated 17.08.2021 for seeking Court's permission for granting passport has been rejected. 2. The facts germane for the present purposes are that the petitioner was facing trial for the offences under sections 323, 341, 452 & 34 of the Indian Penal Code in the Case No. 441/2011. 3. As the trial of the case was pending against the petitioner, the petitioner moved an application (dated 17.08.2021) before the learned trial Court seeking necessary directions to the passport authority to issue him a passport. 4. Petitioner's aforesaid application came to be rejected by the learned trial Court vide order dated 04.10.2021, inter-alia, observing that petitioner has not stated in his application about the place and period for which he is supposed to go using his passport. 5. Impugning the order dated 04.10.2021, passed by the learned trial Court, Mr. Soni, learned counsel for the petitioner argued that getting a passport under the Passports Act, 1967 is a statutory right of a citizen and the same cannot be denied for untenable grounds. He emphasised that what is required by the law is, an accused has to obtain permission from the Court before leaving the country. 6. It is also pointed out by learned counsel for the petitioner that the aforesaid case(No. 441/2011), which was pending against the petitioner has been disposed of by the trial Court in the manner that despite being found guilty of the offence, the petitioner has not been awarded any punishment/sentence and only a fine of Rs. 1500/- has been imposed upon the petitioner, which the petitioner has deposited. 7. Mr. Mukesh Rajpurohit, learned Dy. Solicitor General appearing for the respondent - Union of India submitted that the learned trial Court has rightly rejected petitioner's application as the same was without requisite particulars. He invited Court's attention towards the notification No. GSR 570(E) dated 28.06.1993 and argued that without the leave of the Court, a person cannot leave the country. 8. Heard learned counsel for the rival parties. 9. It is noteworthy that the Passports Act, 1967 does not confer absolute power upon a citizen to obtain passport. He invited Court's attention towards the notification No. GSR 570(E) dated 28.06.1993 and argued that without the leave of the Court, a person cannot leave the country. 8. Heard learned counsel for the rival parties. 9. It is noteworthy that the Passports Act, 1967 does not confer absolute power upon a citizen to obtain passport. Section 6(1) & (2) of the Act prescribes certain conditions/eventualities, when the passport authority is required to turn down request to make an endorcement or issue passport, which includes a condition when an applicant is an accused in a criminal case. It is noteworthy that the Passports Act, 1967 does not confer absolute power upon a citizen to obtain passport. Section 6(1) & (2) of the Act prescribes certain conditions/eventualities, when the passport authority is required to turn down request to make an endorcement or issue passport, which includes a condition when an applicant is an accused in a criminal case. Relevant extract of section 6(2) is reproduced hereinbelow:- "(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:- (a) that the applicant is not a citizen of India; (b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India; (c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India; (d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country; (e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India; (g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court; (h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation; (i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest." 10. To whittle down the rigour of sub-section (2)(f) of section 6 the Central Government has issued a notification dated 28.06.1993, which enables the passport authority to issue passport even in the case of a person covered by clause (f) of sub-section (2) of section 6 of the Act. The notification dated 28.06.1993 is reproduced in its entirety:- "GSR 570(E)- 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. GSR 298(E) dated the 14" April 1976, the Central Government, being of the opinion that it is necessary ni public interest to do so, hereby exempts 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 and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of Clause (f) of sub-section (2) of Section 6 of the said Act, subject to the following conditions, namely:- (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 of 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; (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 afresh court order specifying a further period of validity of the passport or specifying a period for travel abroad; (d) the said citizen shall given 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." 11. The aforementioned notification provides that upon production of an order from the Court, an application for grant of passport shall be considered. In case the order of the Court does not disclose the period for which the passport is to be issued, then, the passport authority will issue the passport for a period of one year only or as the case may be. 12. An accused desirous of seeking permission or order of getting exemption from rigour of clause (f) of section 6(2) of the Act in terms of the notification dated 28.06.1993 may or may not specify the period of stay and place of visit, but in an appropriate case Court can still consider his request and pass an order in this regard. Court's duty in dealing with such application is to see the nature of offence and the necessity of travel. An order in terms of the notification dated 28.06.1993 cannot be passed as a matter of course. 13. In the facts of the present case, rejection of petitioner's application on the basis of non-disclosure of the place of visit and period of travel is ill-founded. Notification dated 28.06.1993 requires the Court to grant permission to travel abroad and on the basis of such order, the passport is required to be issued. If such order does not specify the period of travel, passport can be issued for 1 year. Petitioner in his application dated 17.08.2021 has stated that many of relatives reside in Australia and he is supposed to visit them for social gatherings and family get together. If such order does not specify the period of travel, passport can be issued for 1 year. Petitioner in his application dated 17.08.2021 has stated that many of relatives reside in Australia and he is supposed to visit them for social gatherings and family get together. True it is that he has not given specific date or period of travel, but the trial Court should have passed order of issuing passport. Passing of order in terms of the Notification dated 28.06.1993, is slightly different than permission to travel abroad. 14. The trial Court has therefore, erred in rejecting petitioner's application for issuing passport, which was in essence an application for order in terms of notification dated 28.06.1993. The order of the trial Court is thus, liable to be set aside; which is hereby done. 15. It is noteworthy that by order dated 11.07.2022, the Court has convicted and sentenced the petitioner to a fine of Rs. 1500/-. Hence, in the changed circumstances, clause (f) of sub-section 6(2) will no more apply in petitioner's case, because no trial is pending against him and as a matter of fact clause (e) will come into play, which deals with situation post-conviction. 16. But then, the passport authority cannot refuse to issue passport to the petitioner in the face of sub-section (e) of section 6 of the Passports Act. Clause (e) provides for refusal of passport, where a person has been sentenced with imprisonment for a period not below two years within the five years preceeding his application for passport under section 5 of the Passports Act. 17. The petitioner has not been sentenced, despite his conviction, hence he has not acquired any disqualification. 18. Instant petition is thus disposed of with a liberty to the petitioner to make an application afresh before the competent authority, following the procedure prescribed under section 5 of the Passports Act. If the petitioner prefers such application, the passport authority shall consider the same in light of the relevant provisions of Passports Act and the order instant without being influenced by the order passed by the trial Court on 04.10.2021. 19. The present petition so also stay petition stand disposed of accordingly.