Quashed

Shiv Kumar Upadhyay v. Union of India and 5 Others

Allahabad HC6 Oct 2023A227/6477/2023

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of the petitioner's passport renewal application by the Passport Authority and a Magistrate. The Court quashed the impugned order, holding that mere pendency of a criminal case is not a bar for passport renewal, especially where a Division Bench had previously directed the authorities to act. The Court directed the Passport Officer to decide the fresh ap

What did the court decide?

The impugned order dated 06.04.2023 was quashed. The petitioner was directed to file a fresh application, and the Passport Authority was ordered to decide it within three weeks.

Shiv Kumar Upadhyay Vs Union of… — Constitutional and Fundamental Rights | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:192869

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Reserved

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Court No. - 75

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Case :- MATTERS UNDER ARTICLE 227 No. - 6477 of 2023

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Petitioner :- Shiv Kumar Upadhyay Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Munesh Kumar Upadhyay,Ajit Kumar Counsel for Respondent :- A.S.G.I.,G.A.,Manjari Singh

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Hon'ble Umesh Chandra Sharma,J.

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Heard Ajit Kumar, learned counsel for the petitioner,Ms. Manjari Singh, learned counsel for the respondents and perused the record.

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The instant petition has been filed with the following prayers:

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a) Issue an order or direction setting-aside the impugned order dated 06.04.2023 passed by learned Judicial Magistrate, First, Court No. 12, Basti in Misc. Application date 28.03.2023 filed in Case No. 235 of 2017 ‘State Vs. Vijay Kumar Upadhyay and Ors.” u/s 323, 504 I.P.C., P.S. Dubauliya, District Basti.

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b) Issue an order or direction commanding the respondent no. 2 to renew the passport of the petitioner having Passport No. L0057501.

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c) Issue an order direction commanding respondent nos. 3and 4 to take appropriate decision on the pending representation dated 03.01.2023 moved by the petitioner and to pass appropriate order therein.

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In brief, facts of the case are that an F.I.R. having Case Crime No. 235 of 2017 under Section 323, 504 I.P.C. was lodged at Police Station Dubauliya, District Basti at the behest of one Nandani Devi who was nurturing enmity with the petitioner in respect of old feud between their families, however, the petitioner had no knowledge of the same and he used to keep away from them and focus on his career.

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The petitioner applied for and was granted passport by the respondent no. 3 which was valid from 02.04.2013 to 01.04.2023. The petitioner, on the basis of his qualification was offered a good job from an company situated at United Arab Emirate, therefore, he left the country on 4.11.2021 and was granted Visa which is valid upto 03.11.2023.

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Since the Visa of the petitioner is valid upto 03.11.2023 and the passport would expire on the same date and only a few months were left, as such,the petitioner applied for getting the passport renewed for the subsequent term, i.e. for next two years. The online form was duly filled in and required fee was also deposited.

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Thereafter the petitioner in the hope of renewal of passport visited the Indian Embassy where he was told that his application was subject to the approval/clearance by the Indian Authorities. Thereafter, the petitioner instructed his brother to move a representation before respondent no.3 & 4 for getting the clearance in his favour.

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On aforesaid representation, the petitioner was apprised that the since a criminal case i.e. Case No. 494 of 2017 (State Vs. Shiv Kumar and Another) has been pending against the petitioner and Bailable Warrant has been issued against him, after the submission of charge-sheet, therefore, the authorities are unable to renew the passport of the petitioner.

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The petitioner, having no other option approached this Court by filing a Civil Misc. Writ Petition No. 6431 of 2023 (Shiv Kumar Upadhyay Vs. State of U.P. and Others) for getting his passport renewal application processed by the respondent no. 3. A Division Bench of this Court vide order dated 17.3.2023 directed the petitioner to obtain appropriate order from the concerned Magistrate under relevant notification issued under Section 22 of The Passport Act, 1967.

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The petitioner in compliance of the Division Bench order moved an application dated 28.03.2023 before the Judicial Magistrate, First, Court No. 12, Basti praying therein to grant permission and not to adopt coercive measure against him as it was necessary for seeking renewal of the passport. On the

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application, the learned Judicial Magistrate passed the impugned order dated 06.04.2023 whereby he has rejected the application.

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The grievance of the petitioner is that on the one hand the trial Court is proceeding against the applicant due to his non-appearance and on the other hand his application for renewal of the passport has been kept pending by the authority.

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No counter affidavit has been filed by respondents authorities though memo of appearance has been filed.

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The petitioner has filed relevant papers as annexures with the petition.

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Under Article 19(1)(d) and Article 21 of the Constitution of India, the citizens of the country are entitled for passport. In Maneka Gandhi Vs. Union of India (1978) AIR SC 597 the Apex Court has held that having passport is a fundamental right of the citizen of India and a citizen can not be deprived of such fundamental right. From the perusal of brochure it is established that having a valid passport is a condition precedent for admission in MTI. A citizen has right to education in India provided that they qualify for the admission in the concerned course.

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For issuance of passport there is a declaration form in which at serial no. 5 following declaration has to be made by the applicant which is as under:

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"I have not been charged with criminal proceedings nor is there any arrest warrant or summon pending before any Court of Law in India against me. "

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This condition is also in respect of criminal proceeding according to which a declaration has to be made that the applicant has not been convicted by any Court of Law in India for any criminal offence and has not been sentenced to imprisonment for two years or more than two years.

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Learned A.G.A. concedes that the applicant is not convicted in any case by any Court of Law in India but certainly the impugned criminal case is pending against him.

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The question arises as to whether the declaration at serial no. 5 regarding pendency of criminal proceeding is mandatory or directory in nature.

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18. In this respect some relevant notifications issued by Ministry of External Affairs of Government of India are noted herein below:

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"Ministry of External Affairs, Noti. No. G.S.R. 570(E), dated August 25, 1993, published in the Gazette of India, Extra., Part II, Section 3(i), dated 25th August, 1993, pp. 2-3, Sl. No. 289 [No. VI/401/37/79]

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In exercise of the powers conferred by clause (a) of Section 22 of the Passports Act, 1967 (15 of 1967) and in suppression of the notification of the Government of India in the Ministry of External Affairs No. G.S.R. 298(E), dated the 14th April, 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 :-

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(a) the passport to be issued to every such citizen shall be issued -

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(i) for the period specified in order of the court referred to above, if the court specified a period for which the passport has to be issued; or

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(ii) if no period either for the issue of the passport for the travel abroad is specified in such order, the passport shall be issued for a period of one year;

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(iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period of validity of the passport, the passport shall be issued for one year; or

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(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;

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(b) any passport issued in terms of (a)(ii) and (a)(iii) above can be further renewed fr one year at a time, provided the applicant has not travelled 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.

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(c) any passport issued in terms of (a)(i) above can be further renewed only on the basis f a fresh court order specifying a further period of validity of the passport or specifying a period for travel abroad;

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(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."

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From the aforesaid notifications the Central Government has exempted

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those citizens against whom any criminal proceedings is pending in any Court of law in India on the pre condition that if the Court permits them to deport from India, the passport should be issued. It is noteworthy that in this case the applicant is not seeking issuance of passport for going abroad. The petitioner is already in abroad on a valid passport and Visa and only renewal of the passport is pending. If it is not renewed, he would not be able to travel India and to attend the Court. The same is also necessary for the furtherance of the case.

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20. In Ravindra Nath Bhargav Vs. State of U.P., 2019 0 Supreme (All) 194 , a coordinate Bench of this Court has held that :

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"15. A careful reading of aforesaid provisions of the Passport Act and notification dated 25.08.1993 in the light of it's legislative backgrounds as mentioned above, it is clear that passport or travel document of a person, who is facing trial can be refused by the authority concerned during pendency of his criminal case, but there is no statutory bar for giving no objection by the court concerned. No hard and fast straight jacket formula can be laid down regarding issuance of permission or giving no objection by the court concerned. It is always discretion of the court concerned and depend upon the facts and circumstances of each case, act and conduct of the accused as well as nature of alleged offence committed by him and stage of trial, etc. Some time on account of enmity or ill will one party enmesh the other party in a frivolous criminal case to settle his personal score, therefore, in the interest of justice, it is necessary to consider all aspects of the matter and surrounding circumstances while granting or refusing the no objection for renewal or reissue of passport or travel documents by the court concerned."

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In this case, the petitioner has been made accused with some other persons in Case Crime No. 235 of 2017 under Section 323 & 504 I.P.C. which is a summon trial and bailable offence. From the perusal of record it transpires that the passport of the petitioner was valid upto 01.04.2023 since 2013. The petitioner was also granted Visa which is valid till 03.11.2023 and its renewal has been declined by the Authority. It is very much surprising that the learned Magistrate has rejected the application on flimsy grounds by passing an ambiguous order on 06.04.2023 even when a direction by the Division Bench of this Court has been issued on 17.3.2023 in Writ C No. 6431 of 2023 . In the order dated 17.3.2023, the Division Bench has observed as under :

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“ In the event of any criminal case is pending the petitioner may obtain appropriate order from the concerned Magistrate in relevant notification issued under Section 22 of The Passport Act, 1967.”

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From the above discussion, it is very much clear that mere pendency of a criminal case is no bar for issuance or renewal of a passport or Visa. This is a very sorry state of affairs that even the order of Division Bench has not been honoured by the concerned Magistrate and the concerned Magistrate twisted the matter in his own way for rejecting the application without going through the

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relevant and existing judicial pronouncements, rules and regulations as noted above.

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Considering the facts and circumstances of the case, the impugned order dated 06.04.2023 passed by Judicial Magistrate, First, Court No. 12, Basti, regarding declining the petitioner’s application being against the law, is hereby quashed .

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Accordingly, the petition is disposed of with the following directions :-

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(i) The petitioner shall move a fresh application along with certified copy of this order before the Passport Officer/authority concerned for renewal of his passport;

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(ii) In case such application is moved by the petitioner, the Passport Officer/authority/ concerned shall consider the case of the petitioner afresh in the light of the observations made by this Court in this order and shall decide the application of the petitioner in accordance with law within three weeks from the date of moving application by the applicant before it.

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Let a copy be also sent to the District Judge, Basti, for necessary information and action, if he deems fit.

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Order Date :- 6.10.2023 S.Verma

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(Umesh Chandra Sharma, J.)

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Digitally signed by :- SANDEEP KUMAR VERMA High Court of Judicature at Allahabad

Shiv Kumar Upadhyay v. Union of India and 5 Others

Case brief

What is this about?

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Shiv Kumar Upadhyay v. Union of India and 5 Others

Case brief

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