Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 222 (ALL)

Pawan Kumar Rajbhar v. Union of India

2024-01-19

MANJIVE SHUKLA, SAUMITRA DAYAL SINGH

body2024
JUDGMENT Heard Sri. Chandrakant Tripathi, Sri. Ravindra Kumar Yadav, Sri. Shubhash Chandra Maurya, Sri. Piyush Patel, Sri. Mohd. Kamar Shah Alam, Sri. Sanjeet Kumar Mishra, Sri. R.B. Pal, Sri. Brijesh Kumar Mishra, Sri. Praveen Kumar Chaubey, Sri. Abhijeet Kumar Pandey, Sri. Abhay Mishra, Sri. Rajeev Upadhyay, Sri. Mohd. Imran, Sri. Santosh Kumar Tiwari, Sri. Mohammad Iliyas, Sri. Amar Singh Yadav, Sri. Parashuram Baranwal, Sri. Vipin Kumar Singh and Sri. Amar Singh Yadav, learned counsel for the petitioners, Sri. Sunil Mishra, Sri. Saurabh Kumar Tripathi, Sri. Raj Shekhar Srivastava, Sri. Dinesh Chandra Tripathi, Sri. Ashish Kumar Mishra, Sri. Sarvshwar Lal Srivastava, Sri. Ravi Prakash Singh, Smt. Kiran Bala, Smt. Swarn Lata Suman, Sri. Chandra Vijay Singh, Sri. Raman Saxena, Sri. Ashish Tripathi, Sri. Vijay Raj Pal, Smt. Anju Srivastava, Sri. Dharmendra Singh and Sri. Pramod Kumar Pandey, learned counsel for the respondent- Union. Later, before this order could be signed Sri. S.P.Singh the learned A.S.G.I. has appeared and offered invaluable assistance and suggestions. 2. On the request of the Court, Sri. A.K. Sand, learned Government Advocate has appeared and offered valuable assistance. 3. The present batch of Writ Petitions has arisen from a common grievance raised by the petitioners. All petitioners are citizens of this country. They had applied to the Regional Passport Office, either for grant of fresh Passport or for renewal of their existing Passport or for re-issue of Passport. Their applications have remained pending allegedly for reason of adverse police verification report owing to pendency of criminal investigation etc. Against some of the petitioners, cognizance may have been taken by the competent Court. Largely, proceedings are pending at the stage prior to cognizance being taken i.e. pending investigation upon First Information Report (F.I.R. in short) being registered whereas in some cases Non- Cognizable Report (N.C.R. in short), has been recorded but no F.I.R. has yet been registered. Similar situation may arise in other cases where a criminal complaint may have been lodged either under the IPC or under any Special Act and cognizance may or may not have been taken. In some of the cases before us, the report submitted by the police authorities is specific and in others it is non-specific i.e. the correct status of the NCR/FIR/ Investigation has not been specified. 4. In some of the cases before us, the report submitted by the police authorities is specific and in others it is non-specific i.e. the correct status of the NCR/FIR/ Investigation has not been specified. 4. The Court has been experiencing regular influx of such petitions filed by individual citizens claiming grievance of their application for issue of Passport being delayed or being wrongly rejected. 5. The Court has no hesitation in dealing with the individual cases and it has been issuing directions in such cases being brought before it, in light of the law laid down by the Hon'ble Supreme Court in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation in Criminal Appeal No. 1342 of 2017 as also in view of the coordinate bench decisions of this Court in Rajendra Bihari Lal v. Union of India and Others in Writ-C No. 36038 of 2022 decided on 09.05.2023 (Neutral Citation No.- 2023:AHC:98993-DB; Basoo Yadav v. Union of India and 4 Others in Writ-C No. 29605 of 2022 decided on 16.12.2022 and; Akash Kumar v. Union of India and 2 Others in Writ-C No. 29346 of 2023 decided on 16.10.2023 (Neutral Citation No. 2023:AHC:199423-DB). All such petitions are being disposed of effectively in terms of observations made in Basoo Yadav (Supra) wherein it was observed as below: "(1) The passport form of the petitioner for the issuance of a passport be considered within a period of two weeks from the date of presentation of a certified copy of this order before the respondent no.2- Regional Passport Officer, Regional Passport Office, Vipin Khand, Gomti Nagar, Lucknow; (2) Since we are finding that in quite a few cases the reports of non-cognizable cases in which the concerned Magistrate had not even ordered for investigation were being taken into account for rejection of passport, we issue a direction to the Director General of Police to instruct his officers to give a report with regard to the pendency of reports in non-cognizable cases after appropriate and proper application of mind; (3) Outright the passport applications be not rejected under section 6(2)(f) of the Passports Act if orders of the Court, where the criminal case is pending, have been passed as per the Government Order dated 25.8.1993. The Director General of Police to issue notification in this regard also." 6. The Director General of Police to issue notification in this regard also." 6. Since those directions may not have proven enough and the Court continues to be visited with similar litigation, it appears further directions have become necessary to be issued to ensure that all applications for grant of Passport are dealt with effectively, within reasonable time such that citizens do not have to needlessly approach this Court only to force the State authorities to apply their mind to the individual facts of each case and to obtain a decision on their applications by the passport authorities, in a time bound manner. 7. Unless refusal of Passport arises on objective consideration of relevant material, no real litigation should ever arise. Demand of transparency, efficiency and good administration, in the frame work of e-governance should ensure that the Regional Passport Authority works in tandem with the State authorities and vice-versa, such that any application for grant of a Passport made by an individual citizen is necessarily dealt with in a transparent, efficient and time bound manner such that the status and result of such applications is visible and made known to the individual citizen/applicant in real time. It may allow him to pursue his application with purpose as may further enable that application to reach its fair end. We are also mindful, at present, the above object of good administration is ably supported by e-governance measures adopted by government agencies generally and the Passport Offices specifically. 8. On merits, the Union of India has taken a consistent stand that it has been applying the law laid down by Supreme Court in Vangala Kasturi Rangacharyulu (Supra) as also by this Court in Rajendra Bihari Lal (Supra) and Basoo Yadav (Supra). In addition to the above, the Union has further clarified that it issued the Government Order dated 25.08.1993. It reads as below: "Government Of India Ministry Of External Affairs Notification New Delhi, the 25th August, 1993 G.S.R. 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. It reads as below: "Government Of India Ministry Of External Affairs Notification New Delhi, the 25th August, 1993 G.S.R. 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. 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 the 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. [No.VI/401/37/79] L.K. PONAPPA, Jt. Secy. (CPV)" 9. Thus, we find, though efforts are being made by the Union of India to apply the law correctly, at the same time, the citizens continue to experience the undeserved and avoidable stress of pendency of their applications for unduly long period of time. Hence, they continue to approach this Court to seek a direction upon the Regional Passport Officer, to decide their individual application in a fixed time frame. It is upon aid of that push-start, enabled by an innocuous Court order, the Passport Officer feels confident to deal with such application, i.e. he perhaps feels safe to be acting under the umbrella of a Court order. 10. Perusal of record of the individual petitions also indicates, only frugal information is being made available to the individual applicants on the web-portal presently maintained by the Passport authorities. It does not spell out in detail the reason for pendency of an individual application. Thus, though the Regional Passport Officer, Lucknow claims, only such applications are withheld where the State Police Authorities either report pendency of a criminal case in any criminal court or where the police authorities fail to submit a Police Verification Report, it does appear that there are inadequacies in the communication being made to and by the Regional Passport Officer, through electronic and SMS text mode. Further the web-portal being maintained by the Regional Passport Officer provides frugal/inadequate information as to the status of any application and the reason for its pendency. 11. It is these inadequacies that appear to give rise to continuous fruitless litigation before this Court. Further the web-portal being maintained by the Regional Passport Officer provides frugal/inadequate information as to the status of any application and the reason for its pendency. 11. It is these inadequacies that appear to give rise to continuous fruitless litigation before this Court. We seek to offer that correction as may efficaciously and effectively remedy to the citizens' grievance against long pendency of such applications. Passports being mandatory for foreign travel that may be necessary to be undertaken by a citizen for variety of reasons-from casual/avoidable to emergent/non-avoidable, a citizen sensitive and efficient Passport issuance measure is required to allow the citizens to exercise their fundamental right of liberty, without having to invoke the extraordinary jurisdiction of the Court under Article 226 of the Constitution of India. In that regard valuable assistance has been provided by Sri. S.P. Singh learned A.S.G.I. and Sri. A.K. Sand, learned Government Advocate. 12. For convenience, section 6 of the Passports Act, 1967 (hereinafter referred to as "the Act") is reproduced as under :- "6. Refusal of passports, travel documents etc. (1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or 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 may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India; (b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India; (c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country; (d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest. (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." 13. Plainly that would cover situations of fresh application, renewal application, re-issue application and even cancellation contemplated under Section 10(3)(e) of the Act, for reason of pendency of a criminal proceeding. 14. Passport is the vital travel document that enables a citizen to travel abroad. Therefore, potentially, it also has implications on a pending criminal proceeding, if pending against such a citizen. That by nature is such as would be relevant both for the concern of expeditious disposal of a criminal trial as also a criminal investigation. 15. The legislature has not defined the word 'proceeding'. Therefore, potentially, it also has implications on a pending criminal proceeding, if pending against such a citizen. That by nature is such as would be relevant both for the concern of expeditious disposal of a criminal trial as also a criminal investigation. 15. The legislature has not defined the word 'proceeding'. It has also not used the word 'trial' while creating the disability under Section 6 (2) (f) and Section 10 (3) (e) of the Act. The word 'proceeding' is clearly wider in amplitude to include within its plain meaning, stages preceding a criminal trial. There is no warrant to construe it narrowly in the context of the Act. In Babu Lal v. Hazari Lal Kishori Lal, (1982) 1 SCC 525 it was observed: "17. The word "proceeding" is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action at law, a legal action or process, any act done by authority of a court of law; any step taken in a cause by either party". The term "proceeding" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in Section 22 includes execution proceedings also. In Rameshwar Nath v. U.P. Union Bank Ltd.[AIR 1956 Allahabad 586 : 1956 All LJ 470 : 1956 All WR HC 450] such a view was taken. It is a term giving the widest freedom to a court of law so that it may do justice to the parties in the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It marks a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution". (emphasis supplied) 16. Then, the further phrase used - "in relation of an offence alleged to have been committed by the applicant", used to describe the nature of 'proceeding' that may give rise to the statutory disability created under the aforesaid provisions of law, also suggests conscious widening of the disability contemplated. One of them is execution". (emphasis supplied) 16. Then, the further phrase used - "in relation of an offence alleged to have been committed by the applicant", used to describe the nature of 'proceeding' that may give rise to the statutory disability created under the aforesaid provisions of law, also suggests conscious widening of the disability contemplated. It is so because the words "in relation to" clearly refer to other than 'trial' proceedings. To infer that those proceedings may arise at post cognizance stage would be to attribute impermissible superfluity to the words consciously used by the legislature. 17. At the same time, the unquestioned decision of the Union Government in that regard is contained in the Government Order dated 25.08.1993 extracted above. It allows issuance of a Passport/travel document to any applicant facing any criminal proceeding, against permission order of a Criminal Court. Prima-facie that law is consistent to the precedential as also the statutory procedural law governing applicants facing criminal trials. In any case, there is no challenge raised to the same. 18. Under the Criminal Procedure Code, 1973 (hereinafter referred to as the Code) presence of an accused at any criminal trial is enforced by the competent Criminal Court. Also, by virtue of the provisions of Chapter XII of the Code, starting from the registration of a FIR to the submission of police report and during the investigation, the Case Diary relevant to the same must be regularly produced before the jurisdictional Magistrate. Thus, we are conscious - unless a Final Report is accepted and/or unless cognizance is first taken by the competent Court of criminal jurisdiction, no formal proceeding may arise under the Code and only an investigation or an enquiry into an offence may remain pending, till then. 19. Yet, that narrower construct of the word 'proceeding' under the Code may not be suited to regulate the right of citizens to travel abroad. The purpose of the Act being to facilitate and regulate foreign travel of citizens, it also remains a paramount concern to be addressed by the State that no person accused of a criminal offence leave the shores of the country without notice and knowledge (of his intent to leave the country), given to the competent court of criminal jurisdiction. The purpose of the Act being to facilitate and regulate foreign travel of citizens, it also remains a paramount concern to be addressed by the State that no person accused of a criminal offence leave the shores of the country without notice and knowledge (of his intent to leave the country), given to the competent court of criminal jurisdiction. That information once given to the jurisdictional Criminal Court would provide sufficient safeguard to any legitimate concern that the State Authorities or Regional Passport Authorities may have with respect to any criminal case reported against such an applicant-citizen. To achieve that purpose, a singular, consistent and easily enforceable practice must be put in place to the benefit of all. 20. To the extent the narrow construction of the word 'proceeding', under the Code may appear inadequate to administer the purpose of the Act, the same must be enlarged. Therefore, we have enlarged the scope of the word "proceeding" used in Sections 6(2)(f) and 10(3)(e) of the Act, to help achieve the purpose of the Act. All that it does is, ensure that the jurisdictional Criminal Court be informed in advance - of the foreign travel plan of a person accused of a criminal offence. While travel is a basic human right at the same time its regulation by law is not unconstitutional. To the extent the regulatory measure in question may aid speedy inquiry, investigation, and trial, we allow for that enlarged meaning to be given to the term 'proceeding' under the Act - to include within its sweep a criminal investigation, if pending on the relevant date. 21. Therefore, we are inclined to read the word 'proceeding' used in Sections 6 (2) (f) and 10 (3) (e) of the Act to allow minimum scrutiny/application of mind by the jurisdictional Criminal Court under whose territorial jurisdiction a criminal investigation or enquiry or trial may be pending, as may be the case. Thus, where an offence may be pending investigation at a Police Station, the Court/Judicial Magistrate having territorial jurisdiction over that Police Station may grant permission to a person accused of that criminal offence, to travel abroad. Insofar as NCR are concerned, learned A.S.G.I. has categorically and most fairly stated, there is no reason to withhold issuance, renewal or reissue of a passport. Insofar as NCR are concerned, learned A.S.G.I. has categorically and most fairly stated, there is no reason to withhold issuance, renewal or reissue of a passport. The Regional Passport Authority do not and in any case they shall not withhold issuance, renewal or re-issuance of individual passports against report of NCR against any citizen applicant. 22. Primarily, that Criminal Court would have to be satisfied if the desired permission may be granted to an applicant citizen and the terms and conditions on which such permission may be granted and the period for which such travel permission may be granted. Such discretion when exercised judiciously would temper with reason, the uninhibited administrative discretion that may otherwise be claimed, in such matters. Perhaps, it is the lethargy or doubt in exercise of such administrative discretion that leads to the continuous flow of such petitions to this Court. 23. Also, unless the above expansive interpretation is given to the phrase "proceedings in respect of an offence" and the other phrase "pending before a criminal court" used in Sections 6(2)(f) and 10(3)(e) of the Act, an incongruent situation may arise where permission to travel abroad may come to be granted to an accused in a heinous offence solely for reason of a narrow construction given to the word 'proceeding'. The investigation, the eventual trial and therefore the goal of speedy justice would stand inadvertently prejudiced and compromised, though the same may remain the cherished goal of state policy, on paper. 24. On the other hand allowing such competent Court to apply its mind to the permission sought to travel abroad, does not cause any injury to the applicant. It only enables the trial Court to fix its calendar efficiently. In matters where pre-trial criminal investigation or inquiry may be pending, it would allow the competent Court to test the impact of the travel proposed (by the accused) on the pending criminal investigation etc. It would also allow the competent Court to see if such accused person has cooperated in the criminal investigation and/or if his presence would be imperative during the period of travel proposed. 25. Plainly, the object of the provision demands purposive construction to be made. It would also allow the competent Court to see if such accused person has cooperated in the criminal investigation and/or if his presence would be imperative during the period of travel proposed. 25. Plainly, the object of the provision demands purposive construction to be made. It dictates - no hyper-technical distinction be drawn between a person facing a criminal trial before a competent Criminal Court and a person who may be facing a criminal investigation when both such persons seek to travel abroad. 26. Paragraph 2 of Part A of the existing form for Police Verification Report reads: "2. Is the applicant facing any criminal charges in any Court? Yes No (if YES, please provide specific details of the criminal case)" Thus, as to the modalities to enforce the above, as suggested by Sri. A.K. Sand, learned Government Advocate, henceforth all police reports submitted to the Regional Passport Office would specify against the above field the desired/relevant information as below: (1) In 'Part A' of the Police Verification Report (submitted through online mode), against item 2', for the time being, option 'YES' may be selected in all cases where either a NCR and/or FIR may be found registered against the applicant. Second in that field (that may then be activated), details of such NCR and/or FIR may be given on the following format: NCR No. ................ ; P.S; ............................ And/or FIR No..................... ; U/s ...................(section description); P.S. (details of Police Station), ................... under Court (Court details)......................................... 27. On the above intimation being received, the Regional Passport Offices, for the State of Uttar Pradesh shall ensure: (1) Such minimum information is uploaded on its web portal visible to the individual applicant. In addition, whenever any FIR may be registered, that web portal would indicate to the applicant to apply and obtain permission from the competent Court of criminal jurisdiction, before his application may be processed. (2) That information may also be communicated to the applicant by issuance of a physical notice as before. (3) The Union of India/respondent No. 1 may upgrade its infrastructure to (i) ensure sending intimation of such notice to the applicant through appropriate message on his mobile phone, wherever such details are available. (ii) upload the entire notice on its web portal. Demand of good e-governance may prompt such step to be taken expeditiously, as has already been done in case of fiscal statutes. (ii) upload the entire notice on its web portal. Demand of good e-governance may prompt such step to be taken expeditiously, as has already been done in case of fiscal statutes. (4) As fairly stated by the learned A.S.G.I., in cases where any NCR may be registered, the necessary Passport may be issued, reissued, renewed, as the case may be, without any delay. No permission may be sought or required from the competent court of criminal jurisdiction, in those cases. 28. Considering the time required by an applicant to apply to the competent Court of criminal jurisdiction and the time that may be consumed in grant of such prayer, the Regional Passport Office, Uttar Pradesh may also ensure that the intimation of pendency of criminal proceeding is shared with the applicant at the earliest i.e. within one week from the date of receipt of such intimation from the relevant State Authority. Thereupon, adequate time-not less than eight weeks may be granted to the concerned applicant to obtain that permission and inform the Regional Passport Office, accordingly. During that period his application may be kept pending. Once due permission is received the Regional Passport Officer may not delay the issuance, re-issuance, renewal of passport beyond one week from receipt of such information. 29. As to the further course to be adopted we do not make any observation and leave it to the Regional Passport Officer and the State Authorities to continue to act in accordance with law. In that regard, we have been apprised of certain directions issued by other High Courts requiring a deep revision of the procedures. The present order does not seek to add or modify any such order. We only seek to ensure efficiency under the current procedures . 30. Last we clarify that these directions have been issued in addition to and not by way of substitution of any direction issued in the case of Basoo Yadav (supra). 31. In so far as the present petitioners are concerned, we require the State Authorities to send fresh intimation to the Regional Passport Officer in compliance of these directions, within a period of two weeks from today. The Regional Passport Office shall act in accordance with these directions and issue necessary communications to the individual petitioners, in writing. 32. 31. In so far as the present petitioners are concerned, we require the State Authorities to send fresh intimation to the Regional Passport Officer in compliance of these directions, within a period of two weeks from today. The Regional Passport Office shall act in accordance with these directions and issue necessary communications to the individual petitioners, in writing. 32. Since two month time has been granted to all individual applicants, therefore, subject to the petitioners applying to the concerned Court within two weeks from the date of receipt of intimation from the Regional Passport Office, we expect the concerned Courts to pass appropriate orders not later than four weeks therefrom. However, in cases involving urgency, those orders may be made expeditiously, commensurate to the urgency cited. 33. Accordingly, these writ petitions are disposed of.