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2023 DIGILAW 302 (ALL)

Vijay Gupta v. Union of India

2023-01-30

UMESH CHANDRA SHARMA

body2023
JUDGMENT Umesh Chandra Sharma, J. Heard Shri Sandeep Kumar Dubey, learned counsel for the applicant, Shri Rahul Anand Gaur, learned counsel for opposite party no.1 as well as learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been filed with the prayer to direct the opposite party no.3 to issue a passport to the applicant to pursue his Technical Course (Seafarer Course) in Maritime Training Institute (MTI), Howrah. Further prayer to quash the order dated 30.5.2022 passed by Additional Chief Judicial Magistrate, Bhadohi in Case No. 7253 of 2021 (State v. Guddu and Others) and to issue a 'No Objection Certificate' for issuing a passport to the applicant for pursuing the aforesaid course. 3. In brief, facts of the case are that one Pappu Gupta lodged an F.I.R. on 17..2021 at P.S.- Aurai, under Section 325, 323, 504 I.P.C. against the applicant and his two brothers. The father of the applicant has also filed a criminal case against the informant Pappu Gupta and his sons. In both the cases, the police filed a charge-sheet but till date charges have not been framed. After submission of the charge-sheet the trial Court has taken cognizance and the applicant was granted bail as the offences are bailable and triable by the Magistrate. Presently, the applicant is a student of B.Com IIIrd year. The MTI conducts seafarer training which is approved by the Director General of Shipping, Government of India, Mumbai which is for a period of six months and is held twice a year. The applicant applied for the said course. Under clause 9.1.(1) certain conditions for registration for admission in Maritime Training School have been prescribed. One of the conditions is 'The candidate must have a valid passport'. The copy of the brochure issued by MTI has been annexed as Annexure No. 2 to the petition. Since the applicant was not having passport, therefore, he applied for the same before opposite party no.3 and the application is annexed as Annexure No.3. On the application of the applicant, the opposite party no. 3 called for a police verification report and it appears that the police submitted report that the applicant is accused in Case No. 7253 of 2021 (State v. Guddu and Others) pending in the Court of Additional Chief Judicial Magistrate, Bhadohi at Gyanpur. On the application of the applicant, the opposite party no. 3 called for a police verification report and it appears that the police submitted report that the applicant is accused in Case No. 7253 of 2021 (State v. Guddu and Others) pending in the Court of Additional Chief Judicial Magistrate, Bhadohi at Gyanpur. The applicant having no alternative moved an application duly supported by affidavit in the aforesaid case before the Additional Chief Judicial Magistrate, Bhadohi for issuance of 'No Objection Certificate' for the purpose of issuing passport in favour of the applicant, copy of the application dated 27.4.2022 is annexed as Annexure No. 4. The learned Magistrate vide order dated 30.5.2022 held that the issue is not within his jurisdiction and hence 'No Objection Certificate' can not be issued in favour of the applicant and the application was disposed of. It is stated that the issue of passport is governed by Passports Act, 1967 and it comes under the jurisdiction of opposite party nos. 1 and 3. Under the Passports Act certain conditions have been prescribed under which the Passport Authority can refuse to issue the passport. The applicant has applied for the passport as the same is condition precedent for admission in MTI. The Hon'ble Supreme Court has held that under Article 19(1)(d) of Constitution of India the applicant is entitled to go throughout territory of India. Further, non-issuance of Passport to the applicant to pursue his studies within India is an unreasonable restriction which is violative of Article 14, 19(1) (d) and 21 of the Constitution of India. In the case of Ravindra Nath Bhargava v. State of U.P. this Court had elaborately dealt with the circumstances under which the passport can be issued. In the present case the applicant seeks passport to pursue his studies within India due to the condition imposed by the government of India and, therefore, the opposite parties can not refuse to issue passport to the applicant. 4. A counter affidavit has been filed on behalf of opposite party no.3-Regional Passport Officer, Passport Office, Varanasi, along with affidavit of Kanishk Sharma, Regional Passport Officer, Lucknow, with the averments that on the adverse police verification report received on 14.12.2021, the passport facilities have been denied by the Authority. 5. The applicant has filed rejoinder affidavit with the averments that the police has submitted wrong and contradictory remark/report in which column no. 5. The applicant has filed rejoinder affidavit with the averments that the police has submitted wrong and contradictory remark/report in which column no. 3 specifically provides that where the applicant has been convicted in any crime during the preceding 5 years and sentenced to imprisonment for 2 years or more than 2 years. However, respondent no. 3 even without going through the report has refused to issue passport to the applicant for pursuing his educational course within India. 6. The applicant has filed relevant papers as annexures with the petition. From the perusal of the papers, it is revealed that the applicant has passed High School in year 2016 and Intermediate in the Year 2018, he has also annexed mark-sheet of B.Com 2nd year. The applicant has filed brochure as annexure no. 2 wherein as per clause 9.1. the first condition is that the candidate must have a valid passport. The applicant has filed application form as annexure no. 3. Copies of application and affidavit moved before the trial Court for issuance of 'No Objection Certificate' and order passed thereon have also been filed. The learned Magistrate has rejected the application on the ground that the issuance of 'No Objection Certificate' is not within his jurisdiction. 7. Certainly under Article 19(1)(d) and Article 21 of the Constitution of India, the citizens of the country are entitled for passport. In Maneka Gandhi v. Union of India (1978) AIR SC 597 the Apex Court has held that having passport is a fundamental right of the citizen of India and a citizen can not be deprived of such fundamental right. From the perusal of brochure it is established that having a valid passport is a condition precedent for admission in MTI. A citizen has right to education in India provided that they qualify for the admission in the concerned course. 8. For issuance of passport there is a declaration form in which at serial no. 5 following declaration has to be made by the applicant which is as under: "I have not been charged with criminal proceedings nor is there any arrest warrant or summon pending before any Court of Law in India against me." 9. 8. For issuance of passport there is a declaration form in which at serial no. 5 following declaration has to be made by the applicant which is as under: "I have not been charged with criminal proceedings nor is there any arrest warrant or summon pending before any Court of Law in India against me." 9. This condition is also in respect of criminal proceeding according to which a declaration has to be made that the applicant has not been convicted by any Court of Law in India for any criminal offence and has not been sentenced to imprisonment for two years or more than two years. 10. Learned A.G.A. concedes that the applicant is not convicted in any case by any Court of Law in India but certainly the impugned criminal case is pending against him. 11. The question arises as to whether the declaration at serial no. 5 regarding pendency of criminal proceeding is mandatory or directory in nature. 12. In this respect some relevant notifications issued by Ministry of External Affairs of Government of India are noted herein below: "Ministry of External Affairs, Noti. No. G.S.R. 570(E), dated August 25, 1993, published in the Gazette of India, Extra., Part II, Section 3(i), dated 25th August, 1993, pp. 2-3, Sl. 12. In this respect some relevant notifications issued by Ministry of External Affairs of Government of India are noted herein below: "Ministry of External Affairs, Noti. No. G.S.R. 570(E), dated August 25, 1993, published in the Gazette of India, Extra., Part II, Section 3(i), dated 25th August, 1993, pp. 2-3, Sl. No. 289 [No. VI/401/37/79] In exercise of the powers conferred by clause (a) of section 22 of the Passports Act, 1967 (15 of 1967) and in suppression 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, 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 specified a period for which the passport has to be issued; or (ii) if no period either for the issue of the passport 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 of 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 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 pass port 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." 13. From the aforesaid notifications the Central Government has exempted those citizens against whom any criminal proceedings is pending in any Court of law in India on the pre condition that if the Court permits them to deport from India, the passport should be issued. It is noteworthy that in this case the applicant is not seeking issuance of passport for going abroad. 14. In Ravindra Nath Bhargav v. State of U.P. 2019 Supreme (All) 194, a coordinate Bench of this Court has held that : "15. A careful reading of aforesaid provisions of the Passport Act and notification dated 25.08.1993 in the light of it's legislative backgrounds as mentioned above, it is clear that passport or travel document of a person, who is facing trial can be refused by the authority concerned during pendency of his criminal case, but there is no statutory bar for giving no objection by the court concerned. No hard and fast straight jacket formula can be laid down regarding issuance of permission or giving no objection by the court concerned. It is always discretion of the court concerned and depend upon the facts and circumstances of each case, act and conduct of the accused as well as nature of alleged offence committed by him and stage of trial, etc. Some time on account of enmity or ill will one party enmesh the other party in a frivolous criminal case to settle his personal score, therefore, in the interest of justice, it is necessary to consider all aspects of the matter and surrounding circumstances while granting or refusing the no objection for renewal or reissue of passport or travel documents by the court concerned." 15. In this case, the allegations against the applicant are not heinous in nature and are not triable by the Court of Sessions. A cross-case has also been lodged by the father of the applicant against the informant. In this case, the allegations against the applicant are not heinous in nature and are not triable by the Court of Sessions. A cross-case has also been lodged by the father of the applicant against the informant. The applicant does not seek the issuance of passport for visiting abroad but for admission in MTI which would help in building his personality. The purpose of obtaining passport is not for pleasure or picnic. 16. The applicant has been enlarged on bail on the execution of personal surety bonds. In case, he remains occupied in his training the proceeding of the case may go on through counsel. From the perusal of records it transpires that there is no need of the applicant for identification during trial as both the parties are well known to each other. 17. Considering the facts and circumstances of the case, the impugned order dated 30.5.2022 passed by learned Additional Chief Judicial Magistrate, Bhadohi, that he has no jurisdiction to give 'No Objection Certificate' is against the law and the same is liable to be quashed. 18. Accordingly, the application is disposed of with the following directions :- (i) Applicant shall submit his undertaking along with his affidavit within a period of one month from the date of this order before the trial court concerned clearly mentioning that he will not leave India during pendency of his trial without prior permission of the trial court and he shall appear on each dates in the trial before the trial court. (ii) In case the aforesaid undertaking is filed by the applicant as directed above, the trial court on demand by the applicant shall issue certified copy of undertaking given by the applicant within a week to him. (iii) The applicant shall move a fresh application along with certified copy of this order and his aforesaid undertaking before the Passport Officer/authority concerned for renewal or reissue of his passport, as the case may be. (iv) In case such application is moved by the applicant, the Passport Officer/authority concerned considering the case of the applicant afresh in the light of observation made by this Court in this order as well as contents of undertaking of the applicant, shall decide the application of the applicant in accordance with law within three weeks from the date of moving application by the applicant before him.