Aashil Muhammed v. Union of India and Regional Passport Officer, Cochin

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943 ``` ## **`WP(C) NO. 3406 OF 2021`** ## **`PETITIONER:`** ``` AASHIL MUHAMMED AGED 24 YEARS SERVICE ADVISOR, S/O MUHAMMED, KOLOTH, MIDAYIKUNNAM P. O, THALAYOLAPARAMBU, KOTTAYAM-686605. ``` ``` BY ADVS. K.A.MANZOOR ALI SRI.M.ASIF ``` ## **`RESPONDENTS:`** ``` 1UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI-110001. ``` ``` 2THE REGIONAL PASSPORT OFFICER REGIONAL PASSPORT OFFICE, PANAMPILLY NAGAR P O, COCHIN-682036. ``` ``` SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.JAISHANKAR V.NAIR, CGC ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) 3406/2021 2 ## **JUDGMENT** The petitioner was the holder of Indian passport bearing No. K6000399 which was valid till 03.04.2023. The same was lost during the flood 2018 and he applied for fresh passport. On processing the application, the Regional Passport Officer, the 2[nd] respondent, informed the petitioner that there is adverse police verification report stating that the petitioner is an accused in Crime No.305/2018 of Velloor Police Station for the offences punishable u/s 279, 337, 304 (A) IPC which is pending trial at the Court of the Judicial Magistrate of the First Class-I, Vaikom as C.C No. 594/2018 and the petitioner was called upon to explain. The petitioner thereupon approached the Court of the Judicial Magistrate of the First Class-I, Vaikom for no objection for re-issuance of passport and obtained Ext. P1 order dated 13.6.2019 in C.C No.594/2018 and on the said basis, Ext. P2 passport No. T6884088 was issued by the 2[nd] respondent in continuation of his earlier passport _viz;_ No. K6000399; however with a validity for one year. Thereafter, the petitioner went to Dubai and while working there, the passport expired and the petitioner had to come back. W.P.(C) 3406/2021 3 2.The petitioner applied for renewal of passport, but was told that the passport could be renewed only on production of order of permission from Court. Accordingly, the petitioner moved Crl.M.P. No. 2233/2020 in C.C No.594/2018 before the Court of the Judicial Magistrate of the First Class-I, Vaikom for an order of no objection to renew the passport for a further period. By Ext. P3 dated 17.12.2020, the Court ordered that the Court has no objection in issuing passport to the petitioner. The petitioner produced Ext. P3 order before the 2[nd] respondent and requested to issue passport for a period of 10 years. However, the 2[nd] respondent, without considering the said request, issued Ext. P6, a new passport No. U27566768 to the petitioner which is valid for a period of one year from 20.01.2021 to 19.01.2022. According to the petitioner, when the Court before which trial is pending against the petitioner has ordered that the Court has no objection in issuing passport to the petitioner, the 2[nd] respondent ought to have issued passport for a period of 10 years in terms of Rule 12 of the Passports Rules, 1980 ('Rules', for short). Accordingly, the petitioner has sought for direction to the respondents to extend the W.P.(C) 3406/2021 4 period of validity of Ext.P6 passport for a period of 9 years from 19.01.2022 to 19.01.2031. 3. A Statement has been filed by the learned Central Government Counsel on behalf of the respondents wherein it is stated that, since no period was specified for issuance of passport in Exts. P1 and P3 orders granting no objection, Exts. P2 and P6 passports were issued with one year validity as per GSR (General Statutory Rules) 570 (E) Notification dated 25.08.1993 (Ext.P7) issued by the 1[st] respondent. 4. Heard Sri. Manzoor Ali, the learned counsel for the petitioner and Sri.Jaishankar V. Nair, the learned Central Government Counsel for the respondents. 5. The Passports Act, 1967 provides for the issue of passports and travel documents, to regulate the departure from India of citizens of India and for other persons and for matters incidental or ancillary thereto. Section 5 of the Passports Act deals with applications for passports and travel documents and Section 6 deals with refusal of passports, travel documents etc. and Clause (f) of sub-section (2) of W.P.(C) 3406/2021 5 Section 6 provides that, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country in case the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India. Section 7 deals with duration of passports and travel documents and provides that a passport or travel document shall, unless revoked earlier, continue in force for such period as may be prescribed and Rule 12 of the Rules provides that an ordinary passport for persons other than children below the age of 15 years shall be in force for a period of 10 years from the date of its issue. 6. As per GSR 570 (E) Notification dated 25.08.1993, the Government of India, Ministry of External Affairs in exercise of powers conferred by clause (a) Section 22 of the Passports Act, 1967 has exempted 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 produces 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 W.P.(C) 3406/2021 6 of the Passports 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; 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 traveled 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.” ## 7. As per GSR 570 (E) Notification, the passport authority shall issue a passport to the citizen against whom proceedings in respect of an offence alleged to have been committed by him are pending before W.P.(C) 3406/2021 7 a Criminal Court in India and who produces orders from that Court permitting him to depart from India, for the period specified in order. The notification further provides that, if the Court does not specify a period for which the passport has to be issued; the passport shall be issued for a period of one year. 8. On a detailed consideration of the above notification, this Court, in **Mohamad Shafi** _**v**_ **. Regional Passport Officer** [2017 (2) KHC 484: 2017 (2) KLT 309: ILR (2) Ker.589], held that if the Court has not specified any period to travel abroad, or issued any order restricting issuance of the passport for a specified period, the passport authority is statutorily restricted to issue passport only for a period of one year. This Court considering the object behind the issuance of the said notification, observed as under:- “16.However, the said notification makes it amply clear, as per clause (a)(i), the concerned court is vested with ample powers to issue direction for providing passport for a specific period, and in that event, clause a (iv) also will come into play and permit the authority to issue a passport for the period permitted to travel abroad. If the Magistrate is not specifying the period, the respondent has no other alternative than to issue the passport for one year as is provided under clause (a) (ii). When the Magistrate is considering any such application, it is always open to the Magistrate to specify a period enabling the W.P.(C) 3406/2021 8 petitioner to travel abroad or issue a direction to issue a passport for a specified period in accordance with the facts and circumstances of each and every case. The notification referred to above is issued by the Government of India with the intention of protecting the interest of the citizens as well as the interest of the country at large. The paramount importance of the said notification is that a citizen shall not lose his opportunity to go abroad and seek employment, or travel abroad otherwise or for leisure. However, the same shall not stand in the way of any proceeding being continued in a court of law in India by protracting the proceedings. The Magistrate always has the advantage to assimilate the issue and identify the period during which the presence of the accused in a case is required for continuing with the trial. The Magistrate will also be in a position to know the time required for the trial to start in view of the pendency of other cases before it. By issuing a direction permitting the accused to travel abroad for a specified period and issuing direction to confine the Passport to a particular period in accordance with the requirement of the accused and the requirement of the court, the presence of the accused can be secured before the court. Such imperative condition shall also be issued in the order requiring the accused to be present before court in order to participate in the trial.” ## While parting with the judgment, this Court observed:- “It is always better for the Magistrate to fix a period for the accused to travel abroad, and/or specifying the period for issuance of the Passport by the said authority, which, according to me, can avoid the present complexity and commotion in the issuance of Passport to persons who are accused in criminal cases.” ## 9. This Court, in **Thadevoose Sebastian** _**v**_ **. The Regional** W.P.(C) 3406/2021 9 **Passport Office and another** [2021 (5) KHC 625: 2021 (5) KLT 531: ILR 2021 (4) Ker. 453], on a consideration of GSR 570 (E) Notification, the provisions of the Passports Act and various decisions on the subject, observed that, there are still lacuna about the parameters that govern the grant of no objection by the criminal courts and it is for the legislature to fill up the lacuna by recourse to its rule making power or through proper amendments. This Court further observed that, it is essential that till then there must be some yardstick to govern the grant of such no objections by criminal courts as otherwise, there is a possibility of the grant of permission turning into a subjective satisfaction rather than an objective one. To avoid subjectivity, this Court laid down the parameters that shall govern the grant of permission by the criminal courts in the matter of issuance of passports to those involved in criminal proceedings pending in Courts as follows: (i) The stage of the criminal proceeding and the duration of time within which the trial may take place; (ii) The criminal antecedents and past conduct of the accused; (iii) The nature and gravity of the crime; offences under Statutes dealing with acts of terrorism and acts of smuggling should require a different consideration. W.P.(C) 3406/2021 10 (iv) In heinous crimes, if the court decides to grant permission, the period for which permission is granted can be limited; (v) Chances of the accused fleeing or evading the trial in the case; (vi) Mode in which the presence of the accused can be ensured during trial, including stipulating conditions like providing the address/ change of address in the country of residence abroad, either with the Indian Consulate at the country of residence abroad or with the Court where the trial is pending. (vii) Since in cases where time is not fixed by the Magistrate while granting permission, the Passport authorities are issuing passports only for one year, the period for which the accused can be permitted to travel can also be fixed by the Magistrate, while granting permission. This Court observed that the parameters laid down as above are not exhaustive. 10. One of the important parameters laid down in **Thadevoose Sebastian** (supra) that shall govern the grant of permission by the criminal courts in the matter of issuance of passports to those involved in criminal proceedings pending in Courts is that, while granting permission, the period for which the accused can be permitted to travel can be fixed by the Magistrate. 11. As per GSR 570 (E) Notification dated 25.08.1993, which is statutory in character, if the Court has not specified any period for which the passport has to be issued, the passport authority is W.P.(C) 3406/2021 11 statutorily restricted to issue passport only for a period of one year. Therefore, I do not find any illegality in the 2[nd] respondent restricting issuance of Ext.P6 passport for one year from 20.01.2021 to 19.01.2022 on the basis of Ext.P3. 12.During the pendency of this writ petition, the validity of Ext. P6 passport expired on 19.01.2022. Therefore, this writ petition is disposed of with direction that, if the petitioner files fresh application for permission to travel abroad before the Court of the Judicial Magistrate of the First Class-I, Vaikom in C.C No.594/2018, the same shall be considered in accordance with the parameters under the General Statutory Rules issued by the 1[st] respondent under clause (a) Section 22 of the Passports Act and the parameters laid down by this Court in **Thadevoose Sebastian** (supra). No costs. Sd/- **MURALI PURUSHOTHAMAN JUDGE** ## **spc/** W.P.(C) 3406/2021 12 ## **`APPENDIX OF WP(C) 3406/2021`** ``` PETITIONER’S EXHIBITS: ``` - `EXHIBIT P1` - `TRUE COPY OF THE ORDER DATED 13.06.2019 IN CRL M P NO. 4400/2019 IN CC.594/2018 OF JUDICIAL MAGISTRATE OF THE FIRST CLASS I, VAIKOM.` - `EXHIBIT P2 TRUE COPY OF THE PASSPORT NO. T6884088 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER.` - `EXHIBIT P3 TRUE COPY OF THE ORDER DATED 17.12.2020 IN CRL MP NO. 2233/2020 IN CC 594/2018 OF JUDICIAL MAGISTRATE OF THE FIRST CLASS I, VAIKOM.` - `EXHIBIT P4 TRUE COPY OF THE OFFER LETTER DATED 01.12.2020 FROM ALTAIR ALSQAR ELECTRO MECHANICAL WORKS LLC DUBAI.` - `EXHIBIT P5 TRUE COPY OF THE REQUEST DATED 19.01.2021 SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT.` - `EXHIBIT P6 TRUE COPY OF THE PASSPORT NO. U2756678 VALID FROM 20.01.2021 TO 19.01.2022 ISSUED TO THE PETITIONER.` - `EXHIBIT P7 TRUE COPY OF THE NOTIFICATION NO. GSR 570 (E), DATED 25/8/1993 PASSED BY 1ST RESPONDENT.` - `EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN CRIMINAL APPEAL NO. 306/2019 PASSED BY THE MUMBAI HIGH COURT.` - `EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO 361/2014 PASSED BY THE MUMBAI HIGH COURT.`