Passports Act, 1967 - Section 6(2)(e) - a passport can be denied to a citizen if he is convicted of an offence at
any time during the period of five years preceding the date of application for
a passport.
In the present case, the petitioner was convicted of an offence on
12.09.2014 and, thus, any application made during the period of five years from
that date – that is, till 11.09.2019 – can be rejected in terms of Section
6(2)(e) of the Passports Act. The petitioner would be at liberty to make an
application for a passport after the said date under the provisions of Section
6(2)(e) of the Passports Act. Needless to state that if such application is
made, the same cannot be denied on the ground as stated under Section 6(2)(e)
of the Passports Act. The petition is disposed of in the aforesaid terms.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CORAM HON’BLE MR JUSTICE VIBHU BAKHRU
Judgment delivered on: 11.01.2019
W.P.(C) 9957/2018
ASHOK KUMAR SHARMA .....Petitioner
versus
THE REGIONAL PASSPORT OFFICER AND ORS. .....
Respondents
Advocates who appeared in this case: For the Petitioner :Mr B.P. Singh, Mr Anubhav Gupta
and Mr Vikas Poonia, Advocates. For the Respondents :Mr Ravi Prakash, CGSC with
Mr Farman Ali, Mr Brajesh Kumar, Advocates for R-1 & 2 with Mr Prince
Roshan, JPA, RPO, Delhi. Mr Brajesh Kumar, Advocate for UOI. Mr Sanjeev
Bhandari, SPP, CBI alongwith Mr Prateek Kumar, Advocate for R-3/CBI.
JUDGMENT
VIBHU BAKHRU, J
1. The petitioner has filed the preset petition, inter alia, impugning
an order dated 17.07.2018 (hereafter ‗the impugned order‘) passed by respondent
no.1 (Regional Passport Officer) denying the petitioner‘s request for
re-issuance of the passport. In the impugned order, respondent no.1 has
referred to a notification dated 25.08.1993 issued by the Central Government –
being GSR No. 570 (E) – and indicated that the petitioner‘s application would be processed only on receipt of
an NOC from the concerned Court in terms of the said notification.
2. The petitioner contends that no such NOC is required as the
petitioner‘s application for the same was withdrawn in view of the stand of
respondent no.3 (Central Bureau of Investigation – CBI) that no such NOC is
required.
3. It is apparent from the above that the petitioner‘s predicament arises
from respondent no.1‘s decision not to process the petitioner‘s application for
issuance of passport without NOC from the concerned court where criminal
proceedings are pending and respondent no.3‘s stand that no such NOC is
required.
Factual Background
4. On 08.11.2004, an FIR was, inter alia, registered against the
petitioner under Section 120B of the Indian Penal Code, 1860 (IPC) read with
Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and
Section 420, 467, 468 and 471 IPC. The allegation against the petitioner was
that while posted as the Group General Manager of a public-sector undertaking
(TCIL), he had entered into a criminal conspiracy with the co-accused and
abused his official position, in the matter of appointment of a fictitious firm
as an agent for a project awarded to TCIL by M/s Bhutan Telecom and thereby
causing wrongful pecuniary loss to the exchequer.
5. On 07.01.2008, respondent no.3 (CBI) filed a charge-sheet against the
petitioner under the afore-mentioned provisions. On 22.02.2008, the Trial Court took the cognizance of the said charges and
commenced trial.
6. During the course of the trial, the term of the petitioner‘s passport
expired. Accordingly, in May/June, 2014, the petitioner filed an application
seeking no objection from the Trial Court for renewal of his passport. The
learned Trial Court acceded to the petitioner‘s request and granted the NOC.
However, the petitioner could not complete the formalities for renewal of the
passport prior to completion of the trial.
7. The Trial Court convicted the petitioner by a judgment dated
12.09.2014. By an order dated 15.09.2014, he was sentenced to undergo rigorous
imprisonment for three years with a fine of ₹10,00,000/-. This Court is
informed that the petitioner has deposited the fine as directed.
8. Aggrieved by the conviction and the order of sentence, the petitioner
filed an appeal in this Court (Crl. Appeal No. 1464 of 2014) impugning the
judgment dated 12.09.2014 and the order of sentence dated 15.09.2014. On
21.08.2017, this Court passed an order suspending the sentence of the
petitioner till the disposal of the criminal appeal.
9. After the suspension of sentence, the petitioner filed an application
for renewal of his passport. However, the same was not processed as the
petitioner had not enclosed an NOC by the concerned Court.
10. In view of the above, the petitioner filed an application in the
appellate proceedings pending before this Court (Crl. Misc. Application No.
18189 of 2017 in Crl. Appeal No. 1464 of 2014) seeking permission for renewal
of his passport. Respondent no.3 (CBI) opposed the said application and filed a
reply on 11.12.2017. CBI contended that there was no requirement for issuance
of an NOC, as NOC was required only in cases where criminal proceedings against
the accused were pending and not in cases where he was already convicted.
11. The petitioner claims that in view of the aforesaid stand, he withdrew
his application for an NOC and approached respondents (respondent no.1 and 2)
by way of representations dated 01.02.2018 and 26.02.2018, respectively.
According to the petitioner, he received no response to the said representations.
Consequently, the petitioner filed a writ petition – being W.P.(C) 2291 of 2018
– which was disposed of by this Court by an order dated 13.03.2018 directing
the respondents to deliberate upon the representation filed by the petitioner
and pass a speaking order within a period of ten weeks from the said date.
12. Thereafter, the petitioner made another representation dated 17.04.2018
to respondent no.1 requesting to expedite the process for re-issuance of his
passport. Since the petitioner did not receive any response in respect to the
said representation, the petitioner filed another petition – W.P.(C) 7292 of
2018. The said petition was disposed of by this Court on 19.07.2018 in view of
the statement made on behalf of respondent no.1 that an order dated 17.07.2018 had been
passed, whereby the petitioner‘s request for re-issuance of the passport had
been rejected under the provisions of Section 6(2)(e) of the Passports Act,
1967 (hereafter ‗the Passports Act‘). The petitioner has filed the present
petition impugning the said order.
13. The controversy in the present case relates to interpretation of the
provisions of Clauses (e) and (f) of Section 6(2) of the Passports Act and the
notification dated 25.08.1993 issued by the Central Government. Respondent no.1
and respondent no.3 have taken somewhat divergent stands. According to
respondent no.1, the petitioner would not be entitled to a passport by virtue
of Clauses (e) and (f) of Section 6(2) of the Passports Act. However, the
Central Government has, in exercise of powers under Section 22 of the Passports
Act, issued the notification granting certain exemptions from the operations of
Section 6(2)(f) of the Passports Act by issuing a notification dated
25.08.1993. According to respondent no.1, in terms of the said notification, a
passport can be issued to the petitioner provided the petitioner secures a no
objection from the concerned court where criminal proceedings against him are
pending. It is contended that the petitioner‘s appeal before this Court (Crl.
Appeal No. 1464 of 2014) is a continuation of criminal proceedings and a no
objection from this Court would entitle the petitioner for reissuance of a
passport. Respondent no.3 has countered the aforesaid submission. According to
respondent no.3, the aforesaid notification is not relevant as it does not
relax the application of Clause (e) of Section 6(2) of the Passports Act. Respondent no.3 contends that a passport can be issued
on the basis of an NOC by a concerned Court only where criminal proceeding for
an alleged offence are pending and the said notification would have no
application where an accused has been convicted of an offence.
Reasons and Conclusion
14. At the out outset, it would be relevant to refer to Clauses (e) and (f)
of sub-section 2 of Section 6 of the Passports Act. The relevant provisions are
set out below:-
―6. Refusal of passports, travel documents, etc.- xxxx xxxx xxxx
xxxx (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) xxxx xxxx (b) xxxx
xxxx (c) xxxx xxxx (d) xxxx xxxx (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 committed
by the applicant are pending before a criminal court in India;‖
15. A plain reading of the aforesaid provision indicates that Clauses (e)
and (f) refer to different situations. Clause (f) is applicable only in cases
where criminal proceedings are pending in respect of an allegation of an
offence. Clearly, the said clause is inapplicable where the criminal
proceedings have culminated in a conviction and the offence alleged to have
been committed has been established. Plainly, in such circumstances, the
offence cannot be described as ―alleged to have been committed‖. Clause
(e) of Section 6(2) of the Act relates to a case where an applicant has been
convicted of an offence involving moral turpitude and has been sentenced in
respect thereof to an imprisonment for not less than two years. It is also
relevant to note that the rigor of Clause (e) is applicable only for a period
of five years after such conviction.
16. Undisputedly, the Central Government has the power to grant exemption
from the application of provisions of Passports Act. Section 22 of the
Passports Act reads as under:-
―22. Power to exempt Where the Central Government is of the
opinion that it is necessary or expedient in the public interest so to do, it
may, by notification in the Official Gazette and subject to such conditions, if
any, as it may specify in the notification,-
(a) exempt any person or class of persons from the operation of all or
any of the provisions of this Actor the rules made thereunder; and (b) as often
as may be, cancel any such notification and again subject, by a like
notification, the person or class of persons to the operation of such
provisions….‖
17. In exercise of the aforesaid powers, the Central Government has issued
a notification dated 25.08.1993 – GSR 570 (E). According to respondent no.1,
the said notification is applicable and the petitioner would be entitled to a
passport provided an NOC is issued by the concerned Court before which criminal
proceedings against the petitioner are pending.
18. The said notification is set out below:-
―Ministry of External Affairs Notification New Delhi, the 25thAugust, 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 14thApril 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 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…‖
19. A plain reading of the said notification indicates that its scope is
limited to exempt persons from the operation of Clause (f) of sub-section (2)
of Section 6 of the Passports Act. The opening paragraph of the said
notification makes it amply clear that it only exempts citizens against whom
proceedings, in respect of an offence alleged to have been committed by them,
are pending before a Criminal Court in India.
20. There is merit in respondent no.3‘s contention that in case of the
petitioner the matter has travelled beyond the stage of a mere allegation. Although the petitioner has preferred an appeal against his
conviction, this Court has not passed any order staying the same. Thus, as it
stands today, the petitioner stands convicted of an offence involving moral
turpitude and has been sentenced to undergo imprisonment for a period of three
years. In the aforesaid view, the notification dated 25.08.1993 has no
application.
21. It is also relevant to note that respondent no.1 has not denied the
petitioner‘s request for issuance of a passport under Section 6(2)(f) of the
said Act. In view of the above, this Court finds no infirmity with the decision
of respondent no.1 to deny the petitioner the facility of passport. However,
the reference to the notification dated 25.08.1993 in the impugned order is
misplaced.
22. The petitioner had relied on the decisions in the case of Satwant
Singh Sawhney vs D Ramarathnam, Assistant Passport Officer, New Delhi &
Ors.: AIR 1967 SC 1836 and Maneka Gandhi vs Union of India (1978)
(1) SCC 248 in support of his contention that the petitioner has a
fundamental right to a passport and the same cannot be denied. This is without
merit. Although, the petitioner has a right to a passport, the same is
circumscribed by the provisions of the Passport Act. And, the validity of the
said provisions have not been challenged.
23. Mr Prakash, learned counsel appearing for the respondents had placed
reliance on the decision of the High Court of the State of Telangana and Andhra
Pradesh in Subhas Chandra Bose Mandava v Union of India, Ministry of
External Affairs and Ors.: Writ Appeal No. 1026 of 2018, decided on 01.08.2018
[MANU/AP/0383/2018] in support of his contention that appellate proceedings would also fall
within the scope of criminal proceedings as referred to in the notification
dated 25.08.1993. The reliance on the said decision is misplaced, as in that
case, an appeal against an order of acquittal (not conviction) was pending. Thus,
clause (e) of Section 6(2) of the Passport Act was not applicable and the case
of the applicant therein could be processed in terms of the notification dated
25.08.1993.
24. It is also relevant to observe that in terms of Section 6(2)(e) of the
Act, a passport can be denied to a citizen if he is convicted of an offence at
any time during the period of five years preceding the date of application for
a passport. In the present case, the petitioner was convicted of an offence on
12.09.2014 and, thus, any application made during the period of five years from
that date – that is, till 11.09.2019 – can be rejected in terms of Section
6(2)(e) of the Passports Act. The petitioner would be at liberty to make an
application for a passport after the said date under the provisions of Section
6(2)(e) of the Passports Act. Needless to state that if such application is
made, the same cannot be denied on the ground as stated under Section 6(2)(e)
of the Passports Act.
25. The petition is disposed of in the aforesaid terms.
VIBHU BAKHRU, J JANUARY 11, 2019
RK