Unless a Final Report is Filed, a Criminal Case cannot be Treated as Pending [JUDGMENT]

Passport Act, 1967 - Ss. 6(2)(f) / 10(3)(e) - Unless a charge sheet is filed, the criminal proceedings do not amount to be pending. Mere registration of a crime invokes neither Section 6 nor Section 10.

Passport Act, 1967 - Police Verification Report (PVR) - the police report will contain not only the details of the crime registered against an applicant—but also its stage: especially, whether a charge-sheet is filed and whether cognizance is taken (in cognizable cases).

Passport Act, 1967 – Ss. 6(2)(f) / 10(3)(e) - Passport Guidelines - 4.3 (d) - “pending crime” - Mere registration of an FIR does not attract Section 6(2)(f) or 10(3)(e) of the Act - Only if cases are actually charge-sheeted and pending before the criminal court, do those provisions apply - It then advises the officers to get the case status before refusing the applicant’s request for passport or impounding an already issued passport.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

DAMA SESHADRI NAIDU, J.

W.P.(C). No.21199 of 2018

Dated: 17th July 2018

PETITIONER : MUHAMMED

BY ADVS.SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU SRI.B.MUHAMMED SHAHEEL

RESPONDENTS :

1. UNION OF INDIA, REPRESENTED BY THE SECRETARY MINISTRY OF EXTERNAL AFFAIRS SOUTH BLOCK GOVERNMENT OF INDIA, NEW DELHI-110001.

2. THE REGIONAL PASSPORT OFFICER, PASSPORT OFFICE, ERANHIPPALAM, KOZHIKODE DISTRICT -673006.

3. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM – 695001.

4. STATE HOUSE OFFICER, VALAYAM POLICE STATION,' KOZHIKODE DISTRICT – 673101.

R1 & R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

J U D G M E N T

Introduction:

A person obtains a passport temporarily—Tatkal—secures employment abroad, and leaves the country. Later, the passport officials get an adverse report against him from the police: the person is an accused in a crime. The official wants the person to surrender the passport. The notices sent to the address in India, the person, then abroad, does not respond. The officials treat the person’s failure to respond to notice as a statutory violation. On the person’s return to India, they impound his passport. The officials assert that a crime is “pending” against the person. When does a crime amount to its “pending”?

Facts in Brief:

2. Petitioner Muhammed applied under 'Thatkal' scheme and, on 24.11.2014, obtained a passport, from the 2nd respondent, the Regional Passport Officer. After securing a job, he went abroad and came back on 27.01.2018. The Port Registration Officer at the Cochin International Airport, through Ext.P1, seized the petitioner's passport. It was seized because Muhammed is an accused in Crime No.243 of 2014 of Valayam Police Station, but he allegedly suppressed that fact.

3. Once the Port Registration Officer forwarded the impounded passport to the Regional Passport Officer (the “Passport Officer”), Muhammed filed Ext.P2 representation. The Passport Officer, in turn, replied through Ext.P3: Muhammed could get the passport back if he produced any proof that he had been acquitted of the crime. The Ext.P3 reveals that the Passport Officer wanted Muhammed's case re-verified. The Police did verify and send another report affirming that the criminal proceedings had been pending against him. Assailing Ext.P3, Muhammed filed this Writ Petition.

Submissions: The Petitioner’s:

4. Sri Zubair Pulikool, the petitioner’s counsel, has submitted that the crime was registered on 26.05.2014 against third parties. He contends that Muhammed, initially, was not an accused; he was later added to the crime. Muhammed did not know, asserts Sri Pulikool, about the pending crime, when he applied for the passport because, by then, he had received neither summons nor warrant.

5. Sri Pulikool has also contended that soon after securing the passport, Muhammed left the country and came back only recently. Eventually, he submits that Sections 6(2) (f) and 10 (3) (e) of the Passports Act mandate that there ought to be criminal proceedings “pending.” According to him, unless the court has taken cognizance of the crime, the question of the proceedings pending does not arise. In this regard, he has relied on Satwant Singh Sawhney and Another v. D.Ramarathnam, Assistant Passport Officer, New Delhi, AIR 1967 SC 1836; Abhijit Sen v. Superintendent (Admn.), Regional Passport Officer, Kolkata and Others, 2004 CriL J 1281; Daler Singh v. Union of India and Others, AIR 2015 P&H 206D; Franjo T.Francis v. Varghese Kuruvila, 2018(2) KLJ 180 and Venkatesh Kandasamy v. Government of India, AIR 2015 Mad.3.

Respondents’:

6. Smt. C. G. Preetha, the Central Government Counsel, has strenuously contended that the impounding of passport is unassailable. She has drawn my attention to the statement filed for the respondents 1 and 2. She submits that the Passport Officer, in December 2014, issued the Ext.R1(a) notice to Muhammed's known address. For this he invoked Section 6(2)(f) of the Act. In his absence, Muhammed's parents refused to take the notice. The officer sent another notice, Ext.R1(b), in July 2015, asking Muhammed to show cause why the passport should not be recalled. This one, too, remained unserved.

7. Eventually, the Passport Officer, in November 2015, issued the Ext.R1(c) ‘impounding notice’. The notice required Muhammed to return the passport. As this also did not reach him, on Muhammed’s return to the country, the authorities impounded the passport.

8. Smt. C. G. Preetha has eventually submitted that the Passport Officer has been circumspect to get the “Police Verification Report” (PVR) twice. On both the occasions, she stresses, the police informed the officer that the criminal case has been pending. She has also pointed out the practical difficulty the Passport Officer faces.

9. According to Smt. Preetha, though the law mandates that pendency of a crime pre-supposes charge sheet, the PVR contains no information about the stage of the crime. She has also stressed on the paramount public interest and national security involved in the potential abuse of passports. So the Government, according to her, adopts a zero-tolerance approach. Once the police, on verification, report to the officer that the passport holder or an applicant is an accused in a crime, the officer cannot ignore that piece of information.

10. Here, according to Smt. Preetha, the Passport Officer did all he could to ensure that Muhammed had an opportunity to explain the adverse PVR.

11. About the non-service of notice, Smt. Preetha contends that the officers could serve notice only on the address the applicant provided. Here, Muhammed supplied his native address, to which the notices were sent. Therefore, to conclude, she contends that the officer's action cannot be faulted.

12. To buttress her contentions, Smt. Preetha relied on Abhijit Sen v. Superintendent (Admn.), Regional Passport Officer, Kolkata and Others, 2004 KHC 2329 and Ranjit Bajaj v. Regional Passport Authority, Chandigarh, 2004 KHC 4269.

Analysis:

13. Indeed, the facts are not in dispute: Muhammed secured a passport under the Tatkal scheme; later he left the country. The Passport Officer, in the usual course, had Muhammed’s antecedents verified by the police. That information is technically termed “Police Verification Report”. The report revealed that Muhammed had a crime registered against him. The alleged offence is under Sections 143, 145, 147,148, 324, 326, 307, 353, 447, 427 and 153(A), read with 149 IPC, and Section 3(1) of the Prevention of Damage to Public Property Act. But Muhammed denies suppressing any fact. On the contrary, he contends that he was not an accused in the beginning; he was later added to the crime. Without ever receiving any summons or warrant until he left the country, Muhammed did not know of the crime.

14. The Passport Officer did send notices to Muhammed—to his last known address. Then, he was abroad. His parents refused to receive the notice, though. To that extent, I must hold that the Passport Officer went by the rulebook. The whole dispute concerns a crime—its pendency, rather. So how does the “pending crime” relate in statutory terms? We will see.

15. Freedom of movement is a facet of fundamental rights. A citizen’s right to travel can be curtained only through the procedure established by law. If the right to travel is a part of the personal liberty of a person, he cannot, according to Satwant Singh Sawhney, be deprived of his freedom except by due process of law.

16. Any citizen can apply for a passport under Section 5 of the Act. On receipt of an application, the passport authority will inquire into the request, as it may consider necessary, and will issue or refuse to issue the passport. Section 6 of the Act, on the other hand, enumerates the circumstances under which the authorities can refuse to issue the passport. One such circumstance is, as shown in clause (f) of sub-section (2), the “pending proceedings,” before a criminal court, about an offence alleged to have been committed by the applicant.

17. The Act further probed, we find Section 10 dealing with “variation, impounding, and revocation” of passports. Under Sub-Section (1) of Section 6 or under Section 19, the passport authority may vary or cancel the endorsements on a passport. Then, it will require the holder of a passport, by notice in writing, to deliver up the passport. Section 6 (1) concerns the country’s sovereignty, integrity, security, and its friendly relations with other countries. Section 19, on the other hand, singles out enemy countries notified to have engaged in external aggression against our country. Even if a person’s travel severely impairs the Government’s foreign affairs, the authorities can cancel the passport.

18. Sub-Section (3), in particular, deals with the impounding and revoking of passport. Clause (b) strikes at the applicant’s suppressing material information or providing wrong information. Pending-criminal proceedings, under clause (e), will cause impounding or revoking. Indeed, clause (g) compels the passport holder to comply with any notice under subsection (1): requiring the passport holder to deliver the passport.

19. So, for our purpose, we will examine three contingencies: (1) suppression of material information or providing wrong information [Sec. 10 (3) (b)]; (2) pending criminal proceedings [Sec.10 (3) (e)]; (3) violating a notice under sub-section (1): to deliver up the passport [Sec.10 (3) (g)].

20. First, we should take up Section 10 (3) (g) of the Act: disregarding a notice under sub-section (1). True, not complying with—even not responding to—the notice may force a person to lose his passport. But that notice must have been issued under Section 6 (1)—sovereignty, integrity, security—or Section 19—external aggression—of the Act. As a matter of record, Muhammed received notice under neither provision. So the allegation that Muhammed’s not complying with the notice must fail.

21. The record reveals that the first notice, the Ext.R1(a), wanted Muhammed to clarify his alleged involvement in a pending criminal case. The notice refers to Section 6(2) (f) of the Act. The second notice, the Ext.P1(b), also reiterates the first notice. Besides, it refers to consequences under Section 10 (3) (g) of the Act. But that reference was in the context of Muhammed’s failing to clarify on the pending criminal case. Thus, I reckon, the allegation of suppressing material information relates only to the pending criminal proceedings.

22. So we will focus on one pivotal point: the pending criminal proceedings. First, are there any criminal proceedings pending? In other words, at what stage can we treat a criminal proceeding “pending”? Then, has Muhammed suppressed any information?

23. Indeed, the Passport Officer has the power to impound the passport, and he may have followed the procedure to perfection, before impounding the passport. But his invoking the power must have a factual basis. In Abhijit Sen, a Division Bench of Calcutta High Court, has observed that the proceedings referred to in Section 10(2)(e) of the Act relate to an offence pending before a Criminal Court. A proceeding is treated as pending before a Criminal Court, Abhijit Sen notes, as soon as the court takes cognizance. In other words, a “criminal case is initiated only when the cognizance [is] taken.” So was the dictum of Punjab and Haryana High Court in Daler Singh.

24. Finally, I may also refer to Venkatesh Kandasamy, in which a learned Single Judge—Ramasubramaniam J—of Madras High Court has admirably adumbrated the scheme of the Act. After referring, among other decisions, to Abhijit Sen, Venkatesh Kadasamy holds that unless a final report is filed, a criminal case cannot be treated as pending. So a case at the stage of the investigation will not come “within the four corners of Section 6(2)(f)” of the Act.

25. All these cases have uniformly held that unless a charge sheet is filed, the criminal proceedings do not amount to be pending. Mere registration of a crime invokes neither Section 6 nor Section 10.

26. The police verify the applicant's identity, the citizenship, and antecedents. This information verification is pivotal. “Incomplete, vague or adverse” PVR received, the Passport Officer can ask for more information from the applicants. Indeed, if the report is adverse, the authority may refuse to issue the passport. Besides, it may impound or revoke the already given passport, acting on the adverse report. But all those steps must adhere to due process: the principles of natural justice. Put on notice, if the applicant replies or fails to respond on time, the authority may decide the further cause of action.

27. As the dispute centers on the “pending crime,” we may examine Guideline 4.3 (d) of the Passport Guidelines. That guideline declares that mere registration of an FIR does not attract Section 6(2)(f) or 10(3)(e) of the Act. It also notes that “only if cases are actually charge-sheeted” and pending before the criminal court, do those provisions apply. It then advises the officers to get the case status before refusing the applicant’s request for passport or impounding an already issued passport.

28. To sum up, Muhammed cannot be accused of suppressing any material fact. A crime, in fact, was registered against him, but that crime is not “pending.” So long as it is not pending, the law does not compel him to disclose. And his not revealing a crime under investigation—even if he knew about it—does not amount to suppression.

The Systemic Shortcomings:

29. We must, however, address the concern Smt. Preetha has lamented about. She has submitted that the Passport Officer, or for that matter the Department, is handicapped about the stage of a crime. She stresses that the PVR does not refer to the stage of the crime. I reckon this lacuna leads to inconvenience and incomplete information.

30. After verifying the applicant’s antecedents, the police send the PVR to the Passport Officer. They do mention about the crimes, if any, pending against the applicant. But the stage of the crime not mentioned, the Passport Officer has no way of knowing whether he could invoke Section 10 (2) (f) of the Act.

31. To overcome this shortcoming, I required Muhammed’s counsel to bring on record the Director General of Police, State of Kerala; and the Station House of Officer. He did that.

32. The passport officers do face, I reckon, the avoidable difficulty of having inadequate information about the crime—especially its stage. And it inflicts needless inconvenience on the passport holders. Mere registration of crime may deprive them of the passport. Then, it leads to litigation—again avoidable.

33. So the Director General of Police, State of Kerala, will take suitable administrative measures to modify the PVR. That done, the police report will contain not only the details of the crime registered against an applicant—but also its stage: especially, whether a charge-sheet is filed and whether cognizance is taken (in cognizable cases).

Conclusion:

34. Here, the crime Muhammed faces has not reached the stage of charge-sheet. Going by the plethora of precedents, I hold that the authorities’ impounding Muhammed’s passport suffers from legal infirmities, and it is illegal. The authorities shall return to Muhammed his passport.

With these observations, I allow the Writ Petition. No order on costs.