Allowed

Nawab Ali v. State of U.P. and 2 Others

Allahabad HC30 Jan 2023A482/29183/2022

Case brief

AI extract

What is this about?

The High Court allowed an application under Section 482 Cr.P.C. to quash orders rejecting the applicant's plea for a No Objection Certificate (NOC) for passport renewal despite pending criminal proceedings. The Court held that a rigid statutory bar does not apply and quashed the lower orders, issuing directions for the applicant to file an undertaking and move for passport renewal based on specifi

What did the court decide?

Impugned orders quashed; applicant directed to submit undertaking and apply for passport renewal within stipulated timelines.

Nawab Ali Vs State of U.P. and 2 Others — Service and Employment | Allahabad HC (2023)

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Court No. - 72

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Case :- APPLICATION U/S 482 No. - 29183 of 2022

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Applicant :- Nawab Ali Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Neeraj Srivastava,Vinayak Agrawal Counsel for Opposite Party :- G.A.

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Hon'ble Umesh Chandra Sharma,J.

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Heard Shri Abu Bakht, Advocate, holding brief of Shri Neeraj Srivastava learned counsel for opposite party no.1 as well as learned A.G.A. for the State.

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This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 5.12.2019 passed by Additional Chief Judicial Magistrate, Court No.1, Rampur, in Case No. 3099 of 2017 (State Vs. Abdul Malik) and order dated 26.8.2021 passed in Criminal Revision No. 210 of 2019 (Nawab Ali Vs. State of Uttar Pradesh) by learned Additional Sessions Judge, Court No. 5, Rampur, whereby application for issuance of 'No Objection Certificate/Permission regarding issuance/renewal of passport has been rejected. Further prayer has been made to direct the Additional Chief Judicial Magistrate, Court No1, Rampur, to reconsider the prayer of the applicant for issuing 'No Objection Certificate'.

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In brief, facts of the case are that the applicant is an accused in Case CrimeNo. 472 of 2016 under Section 379 I.P.C. and Sections 3 & 21 of the Mines & Minerals (Regulation & Development) Act1952 & Section 3(1) of the Prevention of Damage to Public Property Act 1984, Police Station Suaar, District Rampur in the year 2016. The applicant has been granted bail in that case by the trial Court. That the applicant has Indian Passport bearing No. IND E-6809120, which was issued in favour of the applicant on 24.2.2004 and was valid till 23.2.2014. The applicant applied for its renewal before opposite party no.3 furnishing all the details of the criminal case pending against him status thereof. Since the applicant was an accused in the aforesaid case, he moved an application before the trial Court for a direction to the Passport Authority, Rampur, to renewal of the passport which was rejected by the trial Court i.e. A.C.J.M. Ist Rampur, vide order dated 5.12.2019.

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Being aggrieved by the order dated 5.12.2019 passed by

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A.C.J.M. Ist, Rampur, the applicant filed a Criminal Revision before the Additional Sessions Judge Court No.5, Rampur, which was also dismissed by the Revisional Court vide order dated 26.8.2021.

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After getting refusal from the trial Court as well as Revisional Court, the applicant has preferred this petition Under Section 482 Cr.P.C.

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Learned counsel for the applicant contended that the intention for the renewal of the passport was to take his parents to the pilgrimage of Hajj and since it is a physically demanding journey and as his parents are old persons suffering from old age illness, they require assistance of the applicant for walking and moving.

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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 trial Court has rejected the application for obtaining 'No Objection Certificate' on the ground that 6(2)(f) of the Passports Act-1967 creates statutory bar for granting permission and it was also observed in the order that the applicant has not communicated the period/duration of aforesaid journey.

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Certainly 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.

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Further, the Ministry of External Affairs of Government of India has issued some relevant notifications which 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

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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 (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; (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 (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 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.

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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 allegations against the applicant are not heinous in nature and are not triable by the Court of Sessions. The applicant does not seek the issuance of passport for pleasure or picnic but for assistance of his parents during their journey to pilgrimage Hajj.

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Considering the facts and circumstances of the case, the impugned order dated 5.12.2019 passed by A.C.J.M. Ist Rampur, learned Additional Chief Judicial Magistrate, Bhadohi and order dated 26.8.2021 passed in Criminal Revision No. 210 of 2019 (Nawab Ali Vs. State of Uttar Pradesh) by learned Additional Sessions Judge, Court No. 5, Rampur, are against the law and the same are quashed.

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

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(i) Applicant shall submit his undertaking along with his affidavit within a period of one month from the date of this order before the trial court concerned clearly mentioning that he will not leave India during pendency of his trial without prior permission of the trial court and he shall appear on each dates in the trial before the trial court.

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(ii) In case the aforesaid undertaking is filed by the applicant as directed above, the trial court on demand by the applicant shall issue certified copy of undertaking given by the applicant within a week to him.

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(iii) The applicant shall move a fresh application along with certified copy of this order and his aforesaid undertaking before the Passport Officer/authority concerned for renewal or reissue of his passport, as the case may be.

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(iv) In case such application is moved by the applicant, the Passport Officer/authority concerned considering the case of the applicant afresh in the light of observation made by this Court in this order as well as contents of undertaking of the applicant, shall decide the application of the applicant in accordance with law within three weeks from the date of moving application by the applicant before it.

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Order Date :- 30.1.2023 S.Verma

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

Nawab Ali v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Nawab Ali v. State of U.P. and 2 Others

Case brief

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What did the court decide?

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