criminal complaints as against the petitioner are only at the
stage of investigation. It is not a case of the Respondent
that final reports have been filed in the criminal Courts in
any of the criminal complaints, so as to make the case
come within the four corners of Section 6(2)(f). Therefore,
the impugned order is vitiated by non-application of mind
and hence it is liable to be set aside.”
Thus, it has been held that proceedings can be said to be pending
before a criminal court only when a cognizance has been taken by the
Court.
In Tarsem Singh's case (supra), this Court dealt with a
matter of re-issue of passport to the petitioner, who was convicted and
sentenced to undergo rigorous imprisonment for 5 years by the Trial
Court. Appeal against conviction and sentence filed by him was
pending, wherein, his sentence was suspended. The objection of the
respondent was that the petitioner had not disclosed about his
conviction in a criminal case at the time of police verification. Later on,
the petitioner filed affidavit mentioning these facts. In these
circumstances, this Court directed the Passport Officer to issue the
passport to the petitioner, subject to the conditions that the petitioner
shall take necessary permission by filing application before the Court to
go abroad.
In Surinder Pal Singh's case (supra), a case under
Sections 427/506/148/149 IPC and Section 25 of the Arms Act was
registered against the petitioner. Report under Section 173 CrPC had
been filed and even the charge was also framed against him and the
case was pending for prosecution evidence. This Court disposed of
the petition granting liberty to the petitioner to apply to the concerned
criminal court and seek its permission to apply for re-issuance of
passport.
Coming to the facts of the case in hand, a criminal case
arising out of the strained matrimonial ties has been registered against
the petitioner at the instance of his alleged wife. As per the documents
available on record and the version of the parties, the Criminal Court
has not taken cognizance of it and charge against the petitioner has not
been framed.
In view of above, this petition is disposed of with a direction
to respondent No.2 to re-issue the passport to the petitioner, if there is
no other legal impediment, except the registration of the aforesaid case.
However, it is directed that the manner of the use of the passport for
travel outside will be subject to the orders of the appropriate criminal
court of competent jurisdiction in respect of the FIR registered against
the petitioner. The petitioner will himself approach the concerned Court,
and seek appropriate directions to travel abroad, if he intends to use the
passport for such a purpose.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.12143 of 2015 (O&M)
Date of decision: October 01, 2015
Daler Singh V Union of India and others
Coram: MR.JUSTICE HARINDER SINGH SIDHU
By filing the present petition, Daler Singh – petitioner has
sought direction to respondents No.1 and 2 to issue him a passport,
which has been withheld on the complaint made by respondent No.3.
The brief facts, as put forth by the petitioner, are that he was
married with one Sandeep Kaur on 2.6.2009. He has been living in
Italy for the last more than seven years and had been visiting India very
often. On 23.3.2015, when he came to India and informed his wife that
he has come to take her and their son to Italy, an argument took place
between them. Sandeep Kaur left the house of the petitioner and also
took away his passport bearing No.H-0805464, which was issued to him
from Milan (Italy). She also made complaints to different police
authorities as also to the NRI Wing, Phase VII, Mohali to lodge an FIR
against the petitioner on general allegations of dowry. Despite best
efforts on the part of the petitioner, the matter could not be resolved
amicably.
The petitioner gave information to the Punjab Police about
his missing passport (Annexure P-1) and also applied for re-issue of the
same before respondents No.1 and 2 on 11.4.2015 (Annexure P-2).
He also filed the requisite affidavit dated 7.4.2015 (Annexure P-3)
regarding his missing passport, wherein, he mentioned that it was
issued from Italy and has been lost in his house on 7.4.2015. He
requested the authorities to re-issue the passport.
On 25.5.2015, on enquiry, the petitioner came to know that
respondents No.1 and 2 have not re-issued his passport because of
the application made by respondent No.3 stating that an inquiry is
pending against the petitioner on the complaint of his wife.
In the reply filed on behalf of respondents No.1 to 3, it has
been stated that while applying for re-issue of the passport, in the
column of spouse, the petitioner has filled the name of `Gurwinder
Kaur', while marital status was filled up as `divorcee'. It is further
stated that adverse police verification report has been received from
respondent No.4, wherein, it is mentioned that the petitioner is married
to Sandeep Kaur and in the absence of a correct mention of the spouse
name, passport facility was not recommended. The reply further states
that a false explanation has been given by the petitioner that he had
been living with Sandeep Kaur, but not legally divorced from the earlier
wife. The second police verification report received from respondent
No.4 further revealed that court case FIR No.27.5.2015 under Sections
406, 420, 494, 498-A read with Section 34 of the Indian Penal Code,
registered at Police Station NRI Patiala is pending against the
petitioner. It has been stated that as and when a clear police
verification report is received from respondent No. 4, the case of the
petitioner would be reconsidered.
I have heard Learned counsel for the parties.
The contention on behalf of the petitioner is that merely on
account of pendency of an FIR in a matrimonial dispute, the
respondents are not justified to withheld his passport. Reliance has
been placed on Abhijit Sen vs. Superintendent (Administration)
Regional Passport Officer, Kolkata and others, 2004(2) AICLR 893,
CWP No.8902 of 2012 titled Tarsem Singh vs. Union of India and
others, decided on 15.01.2014 and CWP No.24358 of 2014 titled
Surinder Pal Singh vs. Union of India and others decided on
13.08.2015.
The right to travel abroad has been recognized as a
fundamental right by the Hon'ble Supreme Court. Accordingly only such
restrictions can be imposed thereon as are authorized by law.
The grounds for refusal of passports and travel documents
are specified in the Passports Act, 1967. The relevant Sections 6(2)
and 10 (3) thereof are reproduced below:
“6. Refusal of passports, travel documents. etc.--
(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.
10. Variation, impounding and revocation of passports
and travel documents. -
(3) The passport authority may impound or cause to be
impounded or revoke a passport or travel document,-
(a) if the passport authority is satisfied that the holder
of the passport or travel document is in wrongful
possession thereof;
(b) if the passport or travel document was obtained by
the suppression of material information or on the basis
of wrong information provided by the holder of the
passport or travel document or any other person on
his behalf; [Provided that if the holder of such passport obtains another
passport the passport authority shall also impound or cause to be impounded
or revoke such other passport]
(c) if the passport authority deems it necessary so to
do in the interests of the sovereignty and integrity of
India, the security of India, friendly relations of India
with any foreign country, or in the interests of the
general public;
(d) if the holder of the passport or travel document
has, at any time after the issue of the passport or
travel document, 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;
(e) if proceedings in respect of an offence alleged to
have been committed by the holder of the passport or
travel document are pending before a criminal court in
India.
(f) if any of the conditions of the passport or travel
document has been contravened;
(g) if the holder of the passport or travel document has
failed to comply with a notice under sub-section (1)
requiring him to deliver up the same;
(h) if it is brought to the notice of the passport
authority that a warrant or summons for the
appearance, or a warrant for the arrest, of the holder
of the passport or travel document has been issued by
a court under any law for the time being in force or if
an order prohibiting the departure from India of the
holder of the passport or other travel document has
been made by any such court and the passport
authority is satisfied that a warrant or summons has
been so issued or an order has been so made.”
Clearly, as per Section 6(2)(f) the issuance of a passport
can be refused if proceedings in respect of a criminal offence alleged to
have been committed by the applicant are pending before a criminal
court in India.
In Abhijit Sen's case (supra), the passport of the
appellant/petitioner (therein) had been impounded under Section
10(2)(e) of the Passport Act, 1967 on the allegation that a criminal case
is pending against him before a Criminal Court in India, at the instance
of his wife. The Division Bench of Calcutta High Court after taking into
consideration various decisions of the Hon'ble Supreme Court and the
High Courts on the issue, held as under:-
“16. The above observations of the Apex Court
makes it clear that submission of the charge sheet is a
matter culminating after the investigation by the Police is
over and over which the Court has no control and therefore,
the presentation of a charge sheet cannot be said to initiate
the criminal proceedings until cognizance is taken by the
Magistrate to place the accused on trial.”
In Venkatesh Kandasamy Vs. Government of India, Ministry of
External Affairs, Chennai, 2015 AIR (Madras) 3, the Court was
concerned with the question as to when can the proceedings be said to
be pending before the Criminal Court.
“19. Having taken note of the scheme of the Passports Act,
if we now go back to Section 6(2)(f) of the Act, it is seen that
after invoking the said provision the first requisite is that
proceedings in respect of an offence should be pending
before a Criminal Court in India. The question as to what
tantamount to proceedings pending before the Criminal
Court, had come up for consideration earlier.
20. In Suresh Nanda v. C.B.I. [Appeal (Crl.)No.179 of
2008 dated 24.1.2008 by the Supreme Court], the passport
of a non resident Indian settled in the United Kingdom, was
seized by the Police, when they conducted a search. A first
information report was registered on the basis of a sting
operation carried out by a news portal. The passport seized
during the search was retained by the Central Bureau of
Investigation. The Special Judge of the CBI Court directed
the release of the passport. On a criminal revision filed by
the Central Bureau of Investigation, the High Court reversed
the order of the Special Court. Therefore, the individual filed
a special leave petition before the Supreme Court.
21. After taking note of the provisions of Section 10(3)(e) of
the Passports Act, 1967 and after taking note of the
decisions of two Constitution Benches, one in Satwant
Singh Sawhney v. D.Ramarathnam, Assistant Passport
Officer [1967 (3) SCR 525] and Menaka Gandhi v. Union
of India and another [1978 (1) SCC 248], the Supreme
Court held that the Passports Act, 1967 being a Special Act,
the provisions therein would prevail over Section 104 of the
Criminal Procedure Code, which confers general power
upon the Court to impound any document. The Court also
pointed out the distinction between the mere seizure of a
passport and the impounding of the same. A seizure is
made at a particular moment, when somebody takes into
possession of some property. However, if the seized
property is retained for some period of time, the retention
amounts to impounding. Therefore, the Supreme Court
pointed out that while the Police may have the power to
seize a passport under Section 102 of the Code, if it is
permissible within the authority given therein, it does not
have the power to retain or impound the same. The Court
also indicated that the moment the Police seizes a passport
under Section 102 of the Criminal Procedure Code, they
must send it along with a letter to the Passport Authority
clearly stating that the seized passport deserves to be
impounded for want of reasons mentioned in Section 10(3).
It is thereafter for the Passport Authority to decide what to
do. Even while taking a decision, the Passport Authority is
to give an opportunity of hearing. What is important in the
aforesaid decision is that in paragraph 15, the Court
indicated that even the Court cannot impound a passport
despite the enabling provision in Section 104 of the Code.
22. In Abhijit Sen v. Superintendent [2004 Crl.L.J. 1281],
a Division Bench of the Calcutta High Court was concerned
with a case where the Passport Authority impounded the
passport under Section 10(2)(e), on the ground that a
criminal case was pending against the passport holder. The
Calcutta High Court held that there are two processes for
initiation of a proceeding before a Criminal Court. While the
first part is the investigation by the Police, the other part is
the direction by the Court. Therefore, after pointing out the
condition prescribed in Section 190 of the Criminal
Procedure Code for initiation of proceedings, the Division
Bench of the Calcutta High Court opined that the
proceedings before a Magistrate is initiated when
cognizance is taken. The Court held that no proceeding can
be said to have been initiated under Clause (a) of Section
190 within the meaning of Section 10(2)(3) of the Passports
Act.
23. In so far as the case on hand is concerned, all the
criminal complaints as against the petitioner are only at the
stage of investigation. It is not a case of the Respondent
that final reports have been filed in the criminal Courts in
any of the criminal complaints, so as to make the case
come within the four corners of Section 6(2)(f). Therefore,
the impugned order is vitiated by non-application of mind
and hence it is liable to be set aside.”
Thus, it has been held that proceedings can be said to be pending
before a criminal court only when a cognizance has been taken by the
Court.
In Tarsem Singh's case (supra), this Court dealt with a
matter of re-issue of passport to the petitioner, who was convicted and
sentenced to undergo rigorous imprisonment for 5 years by the Trial
Court. Appeal against conviction and sentence filed by him was
pending, wherein, his sentence was suspended. The objection of the
respondent was that the petitioner had not disclosed about his
conviction in a criminal case at the time of police verification. Later on,
the petitioner filed affidavit mentioning these facts. In these
circumstances, this Court directed the Passport Officer to issue the
passport to the petitioner, subject to the conditions that the petitioner
shall take necessary permission by filing application before the Court to
go abroad.
In Surinder Pal Singh's case (supra), a case under
Sections 427/506/148/149 IPC and Section 25 of the Arms Act was
registered against the petitioner. Report under Section 173 CrPC had
been filed and even the charge was also framed against him and the
case was pending for prosecution evidence. This Court disposed of
the petition granting liberty to the petitioner to apply to the concerned
criminal court and seek its permission to apply for re-issuance of
passport.
Coming to the facts of the case in hand, a criminal case
arising out of the strained matrimonial ties has been registered against
the petitioner at the instance of his alleged wife. As per the documents
available on record and the version of the parties, the Criminal Court
has not taken cognizance of it and charge against the petitioner has not
been framed.
In view of above, this petition is disposed of with a direction
to respondent No.2 to re-issue the passport to the petitioner, if there is
no other legal impediment, except the registration of the aforesaid case.
However, it is directed that the manner of the use of the passport for
travel outside will be subject to the orders of the appropriate criminal
court of competent jurisdiction in respect of the FIR registered against
the petitioner. The petitioner will himself approach the concerned Court,
and seek appropriate directions to travel abroad, if he intends to use the
passport for such a purpose.
The petition is disposed of with the above directions.
October 01, 2015 (HARINDER SINGH SIDHU)
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