Disposed

Sri B H Kemparaju v. the Passport Officer

Karnataka HC20 Feb 2024WP/3177/2024

Case brief

AI extract

What is this about?

A petitioner whose reissued passport carried restrictions after he suppressed pending criminal cases sought their removal via writ petition. The court directed him to reply to the show cause notice and asked the Regional Passport Officer to decide per the Ministry's 2019 Office Memorandum on GSR 570(E), then disposed of the petition.

What did the court decide?

Petitioner directed to submit reply to show cause notice within two weeks; Regional Passport Officer to consider reply and pass orders in accordance with law within four weeks.

Sri B H Kemparaju Vs the Passport Officer — Writ and Judicial Review | Karnataka HC (2024)

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1 - NC: 2024:KHC:7001 WP No. 3177 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 3177 OF 2024 (GM-PASS)

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BETWEEN:

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SRI. B.H. KEMPARAJU, S/O HANUMANTHAIAH, AGED ABOUT 53 YEARS, RESIDING AT NO. 46, BETTAHALLI MAIN ROAD, BETTAHALLI, DASANAPURA HOBLI, KADABAGERE POST, BENGALURU NORTH TALUK, BENGALURU - 562 130.

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…PETITIONER

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(BY SRI. J.D. KASHINATH, ADVOCATE)

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AND:

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Digitally signed by NAGAVENI 1. THE PASSPORT OFFICER, Location: HIGH REGIONAL PASSPORT OFFICE, COURT OF KARNATAKA BENGALURU, 8TH BLOCK, 80 FT ROAD, KORAMANGALA, BENGALURU - 560 095, KARNATAKA.

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THE SUPERINTENDENT OF POLICE, BANGALORE RURAL DISTRICT, CUNNINGHAM ROAD, BENGALURU - 560 001.

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NC: 2024:KHC:7001 WP No. 3177 of 2024

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THE POLICE INSPECTOR, MADANAYAKANAHALLI POLICE STATION, MADANAYAKANAHALLI, BENGALURU - 562 162.

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…RESPONDENTS

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(BY SRI. RAJASHEKAR S., ADVOCATE FOR R1; SRI. KIRAN KUMAR, HCGP FOR R2 AND R3)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R1 TO REMOVE THE RESTRICTIONS IMPOSED ON THE PETITIONER ON HIS PASSPORT BEARING NO.W4263506 RENEWED FOR THE PERIOD FROM 18.08.2022 TO 17.08.2032 AS PER ANNEXURE-E BY RECEIVING UNDERTAKING AS PER O.M DATED:10.10.2019 AS PER ANNEXURE-L, CONSEQUENTLY ALLOW THE PETITIONER TO TRAVEL TO OTHER COUNTRIES.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking a direction by issuance of a writ in the nature of mandamus to remove restriction imposed upon the petitioner on his passport at the time when it was reissued on 18.08.2022.

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Heard Sri. J.D. Kashinath, learned counsel appearing for the petitioner, Sri. Rajashekar S., learned counsel appearing for respondent No.1 and Sri. Kiran Kumar, learned HCGP appearing for respondent Nos.2 and 3.

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NC: 2024:KHC:7001 WP No. 3177 of 2024

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The petitioner is holder of an Indian passport issued

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by the Regional Passport Office, Bangalore on 28.07.2011. After the issuance of the said passport for a period of 10 years,

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it transpires that the petitioner gets embroiled in two proceedings; one of the proceedings is compromised between the parties after the charge sheet having been filed before the concerned Court in C.C.No.10106/2022. Recording the said compromise, this Court in Crl.P.No.11442/2022, quashed the criminal proceedings against the petitioner. The other proceeding pending against the petitioner is in Crime No.24/2021 before the jurisdictional police, which is pending consideration before the concerned Court in W.P.No.10149/2021, in which, there is an interim order operating against the petitioner. Therefore, the second case is at the stage of crime and the concerned Court has not taken cognizance of the offences in the light of the interim order granted in favour of the petitioner.

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The petitioner suppressing these two facts, applies for re-issuance of a passport with the Regional Passport office. The Regional Passport Office reissues a passport on 18.08.2022

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NC: 2024:KHC:7001 WP No. 3177 of 2024

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with normal validity for a period of 10 years, which would expire on 17.08.2032. It then comes to the light of the Regional Passport Office that the petitioner had suppressed the aforesaid crimes pending against him and therefore, issues a show cause notice on 19.10.2022 seeking to show cause as to why action should not be taken on account of such suppression.

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The petitioner has not submitted his reply to the said show cause notice but knocked at the doors of this Court in the subject petition long after issuance of the show cause notice.

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Learned counsel for the petitioner submits that of the two proceedings that the show cause notice refers, one is closed by recording the compromise and quashing proceedings in C.C.No.10106/2022, and the other is at the stage of the crime, which is stayed by this Court. He would admit that those facts were not divulged at the time when he applied for reissuance of passport. Therefore, the petitioner shall now submit a reply to the said show cause notice issued on 19.10.2022, within two weeks from the date of receipt of a copy of this order.

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NC: 2024:KHC:7001 WP No. 3177 of 2024

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The Regional Passport Officer shall consider the reply submitted by the petitioner and pass necessary orders. While so doing, the Regional Passport Officer shall bear in mind the Office Memorandum issued by the Ministry of External Affairs clarifying GSR 570(E) issued on 25.08.1993, as clarified on 10.10.2019, in which, Clause 5 thereof, reads as follows:

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"5. In view of the above, the following instructions may be adopted while processing the passport applications in respect of those applicants who may have criminal proceedings pending before a criminal court in India:

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"(i) The provisions of GSR 570(E) may be strictly applied in all cases. GSR 570(E) is a statutory notification and hence forms part of the Rules. It is to be noted that as per Section 5(2) of the Passports Act, 1967, the passport authority shall by order in writing take a decision whether to issue or refuse a passport, after making such inquiry, if any, as it may consider necessary. Moreover, Section 7 of the Passports Act, provides that a passport or travel document may be issued for a shorter period than the prescribed period if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period. Rule 12 of the Passport Rules, 1980 only states that an ordinary passport shall be in force for a period of 10 years which implies that an ordinary passport cannot be issued beyond a period of 10 years.

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(ii) Whenever an applicant is submitting a 'No Objection Certificate' (NOC) from a Court of law in India, the applicant should be advised that undertaking as per GSR 570(E) should be complete in all respects and should mention all the pending criminal cases against the applicant. The undertaking will have a note clearly stating that if any false or incomplete information is

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6 - NC: 2024:KHC:7001 WP No. 3177 of 2024

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submitted by an applicant, then his passport application is liable to be rejected.

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(iii) Extant instructions clearly lay down that such applications should be processed on pre-Police Verification (PV) mode. "Pre-PV" would be mandatory in all cases of applications submitted with GSR 570(E) to ensure that the undertaking submitted by the applicant is properly matched with the criminal cases mentioned in the Police Verification Report (PVR). Hence, such applications should not be accepted under Tatkaal nor such applications be moved to "post-PV" mode or "NoPV" mode without proper justification and approval to be recorded in writing.

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(iv) If an undertaking is incomplete or misleading and the applicant is found to have suppressed details of other criminal cases against the applicant, a Show Cause Notice should be issued to the applicant and action initiated against that applicant as per provisions of Section 12 of the Passports Act, 1967. If information that an applicant has obtained a passport by making a false submission or by suppressing material facts comes to light after the passport has been issued, the passport may be impounded or revoked as per provision of Section 10(3) (b) of the Passports Act, 1967, after following the due procedure.

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(v) In case where the first Police Verification(PV) is 'Adverse', secondary police verification may be generated. While a secondary PV is generated, it should be accompanied by a detailed letter seeking clarification regarding the pending criminal cases against the applicant and the status of these cases. Apart from generating secondary PVR, the passport officers may, if considered necessary, call for discreet enquiry through the police authorities by sending the court order submitted by the applicant or even seek verification from other government agencies/departments, as the case may be.

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(vi) In case where the secondary Police Verification is also 'Adverse', it may be examined whether the details brought out in the police report match the undertaking submitted by the applicant. It may be noted that mere filing of FIRs and cases under investigation do not come under the purview of Section 6(2)(f) and that criminal

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NC: 2024:KHC:7001 WP No. 3177 of 2024

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proceedings would only be considered pending against an applicant if a case has been registered before any Court of law and the court has taken cognizance of the same.

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(vii) If the details given in the police report and the undertaking submitted by the applicant are matching, then the 'No Objection Certificate issued by a Court of law submitted by the applicant would take precedence over any 'Adverse report submitted by the police. In such cases, the 'Adverse' report may be overruled with the written approval of the Passport Officer.

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(viii) If the details given in the PVR and the undertaking submitted by the applicant are at variance, then a notice may be issued to the applicant calling for clarification and advising the applicant to submit details of all pending criminal cases as well as to submit a revised No Objection Certificate (NOC)

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(ix) If it is brought to the notice of the authority that an applicant has criminal proceedings arrayed against applicant before several courts of law, then the applicant may be advised to get NOC from all the concerned court(s). Normally, the Court Order would make a mention of the cases pending against the applicant as well as the prayer made by the applicant. This may be examined along with the undertaking submitted by the applicant and complaints or other court orders, if any, that may have been received against the applicant.

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(x) It may noted that GSR 570(E) only exempts an applicant from the operation of Section 6(2)(f) and none of the other sub-sections of Section 6(2) of the Passports Act, 1967.

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(xi) A revised Undertaking under GSR 570(E) is attached at Annexure 'A'.

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(xii) Passport Officers may issue an internal SOP along the above lines so that there is no confusion in handling of applications that would attract provisions of section 6(2)(f) of the Passports Act, 1967."

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NC: 2024:KHC:7001 WP No. 3177 of 2024

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Clause 5 of the Office Memorandum clarifies that in cases where the proceedings are pending before any criminal Court and cognizance has been taken, it is only then the normal validity passport would not be issued.

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Bearing in mind the Office Memorandum, the Regional Passport Officer shall consider the reply of the petitioner and pass necessary orders in accordance with law, within four weeks, thereafter.

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For the aforesaid reasons, the following:

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ORDER

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i. The petition is disposed.

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ii. The petitioner shall submit a reply to the show cause notice issued on 19.10.2022 or any subsequent show cause notice issued, within two weeks from the date of receipt of a copy of this order.

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iii. The Regional Passport Officer shall consider the same and pass necessary orders, within four weeks

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NC: 2024:KHC:7001 WP No. 3177 of 2024

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thereafter, bearing in mind the observations made

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in the course of the order.

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Sd/JUDGE

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SJK List No.: 1 Sl No.: 29 CT:SNN

Sri B H Kemparaju v. the Passport Officer

Case brief

What is this about?

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Sri B H Kemparaju v. the Passport Officer

Case brief

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