Muhammed Akhiludheen v. Union of India and Consular General of India

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 07TH DAY OF JANUARY 2021/17TH POUSHA, 1942** ## **WP(C).No.16027 OF 2020(C)** ## **PETITIONER:** **MUHAMMED AKHILUDHEEN, AGED 25 YEARS, S/O. CHEKKUNNI, KOTTAMAL, THANDUPURAKKALKOTTAMMAL HOUSE, WANDOOR, PORUR P O, MALAPPURAM-679339.** **BY ADVS. SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SRI.U.M.HASSAN SMT.P.PARVATHY SMT.SURYA P SHAJI SHRI.MANAS P HAMEED SHRI.GAUTHAM MOHAN H. SMT.AATHIRA SUNNY** ## **RESPONDENTS:** **1 UNION OF INDIA, MINISTRY OF EXTERNAL AFFAIRS, REPRESENTED BY ITS SECRETARY, ROOM NO.149 A, SOUTH BLOCK, NEW DELHI-110011. 2 CONSULAR GENERAL OF INDIA, DUBAI(UAE), AL HAMRIYA DIPLOMATIC ENCLAVE, P.O. BOX 737, DUBAI, UAE.** **R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC No.16027/2020 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.16027 of 2020 ````````````````````````````````````````````````````````````` _Dated this the 7[th] day of January, 2021_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who is employed in Dubai, has filed this writ petition seeking to command the respondents to renew/reissue his passport bearing No.R3913371. 2. The petitioner states that he was implicated in Crime No.284/2016 of Wandoor Police Station for offences punishable under Sections 341, 323, 324 and 353 read with Section 34 IPC. In the year 2016, the petitioner filed CMP No.1478/2017 before the Judicial First Class Magistrate's Court-II, Perinthalmanna seeking NOC for issuance of passport, for employment purpose. The Magistrate passed Ext.P2 order permitting the petitioner to apply for passport. WPC No.16027/2020 : 3 : 3. Accordingly, Ext.P1 passport was issued to the petitioner. The validity of the passport was for a period of one year, up to 19.10.2018. The petitioner went to Dubai and he is working there as a Restaurant Coffee Shop Manager. The petitioner contends that before the expiry of the period of Ext.P1 passport, he submitted Ext.P3 application for renewal of passport on 09.09.2018 to the BLS International, which is an exclusive trusted partner to the Embassy of India in Dubai. The petitioner submits that the BLS authorities required him to approach Consulate General of India for renewal of passport. 4. It is the case of the petitioner that the office of the Consulate General of India informed the petitioner that his application cannot be considered since a criminal case is pending against him before the Magistrate's Court, Perinthalmanna. It is the further case of the petitioner that when he approached the 2[nd] respondent-Consulate General of India, he was required to submit a fresh application for renewal of the passport and accordingly the petitioner WPC No.16027/2020 : 4 : submitted Ext.P4 application on 11.11.2018. 5. The petitioner states that the respondents are not allowing his application for renewal of passport for the reason that the petitioner is an accused in Crime No.284/2016 of Wandoor Police Station. The petitioner is therefore unable to return to India since his passport is expired. The respondents are compellable to renew the passport of the petitioner, without insisting for further orders from the Magistrate's Court. 6. The Assistant Solicitor General of India filed a statement on behalf of respondents 1 and 2. Paragraphs 2 to 4 of the statement filed on behalf of respondents 1 and 2 read as follows:- “2. It is humbly submitted that Mr.Mohammed Akhiludheen Kottammal obtained a short validity passport No.R3913371 from the Regional Passport Office, Malappuram, valid from 20.10.2017 to 19.10.2018 and as per the records available in passport database maintained by the Ministry of External Affairs, the applicant has not submitted any passport application with CGI, Dubai till date. 3. It is further stated that there is remark entry being reflected in passport database against the above said passport which appears to be entered by RPO, Malappuram in 2017. The contents of the remarks are as under: 'criminal case pending, court WPC No.16027/2020 : 5 : order to issue passport for one year on file. Passport cannot be reissued without further order from court.' 4. It is humbly submitted that there are no records available in the answering respondent's office to show that the petitioner approached BLS and in turn he was channelized to the answering respondent's office.” 7. The learned Assistant Solicitor General argued that Section 6(2)(f) of the Passports Act, 1967 provides that subject to other provisions of the Act, the passport authority shall refuse to issue a passport or travel document, if proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court. 8. Learned counsel for the petitioner relied on the judgment of the Hon'ble High Court of Delhi in _**Ashok Khanna v. Central Bureau of Investigation** [265 (2019) DLT 614]_ wherein the Hon'ble High Court held that since there is a separate provision for renewal of passport, Section 6 of the Passports Act, 1967 will not apply and that renewal of passports cannot be based on any of the eventualities WPC No.16027/2020 : 6 : specified in Section 6 of the Passports Act, 1967. The learned counsel further relied on the judgment of the Hon'ble High Court of Karnataka in WP(C) No.9141/2020, wherein the High Court held that for renewal of passport, there is no requirement for obtaining permission from the jurisdictional Magistrate. 9. I have heard learned counsel for the petitioner and learned Assistant Solicitor General of India for the respondents. 10. The contention of the learned counsel for the petitioner is that Ext.P1 passport was issued to him on the basis of Ext.P2 order of the Magistrate’s Court before which the criminal proceedings are pending against the petitioner. Once the Magistrate's Court has granted permission to the petitioner for making an application for passport, renewal of the passport so obtained need not require a court order. Section 6(2)(f) of the Passports Act 1967, will not apply in cases of renewal of passports, as held by various High Courts. WPC No.16027/2020 : 7 : 11. I do not find the judgments of the Hon'ble High Courts of Delhi and Karnataka will be of much help to the petitioner because, the specific case of the respondents is that their database does not show that the applicant has made any application for renewal of passport before the 2[nd] respondent-Consulate General of India. There are no records available in the office of the respondents to show that the petitioner approached BLS International and he was channelised to the office of the Consulate General of India. 12. The learned counsel for the petitioner heavily relied on Ext.P3 document to show that an application was submitted to the BLS in time and there is an endorsement in Ext.P3. When the respondents specifically contended that no application submitted by the petitioner was received by the respondents and the data base of the respondents do not show submission of any such application, it will not be proper or safe to arrive at a conclusion that the petitioner has submitted Ext.P3 application in the office of the 2[nd] respondent in time. This Court therefore do not find any WPC No.16027/2020 : 8 : reason to disbelieve the statement of the respondents. 13. In the circumstances of the case, the petitioner is not entitled to the relief prayed for in the writ petition. However, I note that in the statement filed by the respondents, the respondents have suggested that the petitioner may submit an application for emergency certificate with the 2[nd] respondent along with his previous passport and in such case, the petitioner would be issued emergency certificate to return to India. Once the petitioner comes to India on emergency certificate, the petitioner can make an application for issuance of a fresh passport. Leaving open such a remedy and recourse to the petitioner, this writ petition is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/04.01.2021 WPC No.16027/2020 : 9 : ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF PASSPORT OF PETITIONER BEARING NUMBER R 3913371.** **EXHIBIT P2 COPY OF ORDER DATED 17.08.2017 IN CMP 1478/2017 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE II, PERINTHALMANNA.** **EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR RENEWAL OF THE PASSPORT ON 9.09.2018 EXHIBIT P4 TRUE COPY OF THE SECOND APPLICATION** **TRUE COPY OF THE SECOND APPLICATION FOR RENEWAL OF PASSPORT DATED 11.11.2018.**