Ajay Kumar Yadav v. Union of India and 2 Others

Court No. - 40 Case :- WRIT - C No. - 38805 of 2023 Petitioner :- Ajay Kumar Yadav Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Pradeep Kumar,Dinesh Yadav,Mahesh Kumar Yadav Counsel for Respondent :- A.S.G.I.,Puneet Srivastava Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Prashant Kumar,J.

¶1Heard Sri Pradeep Kumar, learned counsel for the petitioner and Sri Puneet Srivastava, learned Standing Counsel for the respondent-Union of India.

¶2The present writ petition has been preferred for a mandamus commanding respondent no.2 to process the petitioner's application no.LK4066738699222 dated

29.04.2023 for issuance of passport within stipulated time.

¶3Learned counsel for the petitioner submits that the petitioner has applied for issuance of passport on 29.04.2023 vide application no.LK4066738699222 and after submission of the said application a police report was called upon. In which negative report was submitted indicating, therein, that against the petitioner a criminal case bearing Case Crime No.506 of 2021, under Sections 323, 504, IPC, Police Station Nizamabad, District Azamgarh was registered. Even though, in the said proceeding police report under Section 173 (2) Cr.P.C. was also submitted to the competent court and the court has already taken cognizance. It is claimed that till date the petitioner has not been convicted in the matter and except the aforesaid case no other case has ever been registered against the petitioner. He further submits that the said case is not of such a nature, wherein, the passport may be denied to the petitioner. It has also been averred that the issue of issuance of passport (while the criminal case is pending against the applicant) has been considered by this Court in Writ C No. 8621 of 2022 (Shiv Shankar vs. Union of India) decided on 3.12.2022, in which, it has been held that the appropriate course, which legally is available to the applicant is to approach the court concerned and seek an order permitting the applicant to depart from India. For ready reference, the operative portion of the order dated 3.12.2022 is reproduced herein below:- "8. We have considered the aforesaid submissions of learned counsel for the petitioner. We have also heard Sri Varun Pandey, learned counsel representing the respondents, who has vehemently opposed the prayer of the petitioner and has submitted that in terms of the provisions contained in Section 6(2)(f) of the Passport Act 1967, the passport authority is bound to refuse to issue the passport under Section 5(2)(c) of the Passport Act, 1967 in this case for the reason that pendency of criminal proceedings is one of the grounds enumerated in Section 6(2)(f) of the Act of 1967 to deny issuance of passport.

¶9Section 6 (2)(f) of the 1967 Act provides that the passport authority shall refuse to issue the passport in various conditions including a situation where proceedings in respect of an offence, alleged to have been committed by the person seeking passport, are pending before criminal court in India. It is undeniable in this case that after lodging of the First Information Report bearing No.0576 of 2020, the charge sheet has also been submitted before the Court concerned by the Investigating Officer, as has been communicated to the petitioner by the letter dated

29.09.2022, which was communicated to the petitioner by the Indian Embassy at Kuwait.

¶10Having regard to the provisions contained in Section 6 (2)(f) of the 1967 Act, unless the criminal proceedings are concluded, the passport authority is bound to refuse issuance of the passport, however to meet such exigencies where some frivolous or unsustainable criminal cases are pending, Government of India has issued a Circular dated 10.10.2019. The said circular has been issued in furtherance of an earlier Circular published vide Notification No.GSR 570 (E), dated 25.08.1993. The said circulars dated 10.10.2019 and 25.08.1993 have been issued by the Ministry of Foreign Affairs, Government of India, in exercise of its powers conferred under Section 22 of the Passport Act, 1967 and hence they are statutory in nature and accordingly are binding on all concerned.

¶11We may also notice that Office Memorandum dated 10.10.2019 has been issued in reference to the provisions contained in Section 6 (2)(f) of the Passport Act, 1967. As per the Office Memorandum dated 10.10.2019, GSR 570 (E), dated 25.08.1993 exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before the criminal court in India if they produce orders from the court concerned permitting them to depart from India, from operation of the provisions of Section 6 (2)(f) of the 1967 Act. Clause 5 (i) of the Office Memorandum dated 10.10.2019 clearly provides that the provisions of GSR 570 (E) may be strictly applied in all cases, which also clarifies that GSR 570

(E) is a statutory notification and hence it forms part of the Rules.

¶12In view of the aforesaid, what we notice is that the Government of India has been conscious of a situation where certain frivolous criminal complaints or cases are lodged against the persons seeking passport and accordingly, has evolved a complete mechanism by issuing Office Memorandum dated 10.10.2019 and Office Memorandum dated 25.08.1993 (GSR 570 (E)). When we examine the facts of the present case, what we find is that the First Information Report has been lodged by the real sister of the applicant and the contents thereof also reflect that the same was lodged in relation to some not so serious family dispute.

¶13In view of the aforesaid, denying the petitioner passport only on account of pendency of the aforesaid criminal case does not appear to be equitable. However in terms of the provisions contained in the Office Memorandum issued by the Government of India in the Ministry of External Affairs, dated 10.10.2019 and 25.08.1993, the petitioner will have to seek an order from the court where the charge sheet in relation to the F.I.R. No. 0576 of 2020, P.S. Kotwali, Unnao is pending.

¶14Accordingly, the appropriate course which legally is available to the petitioner is to approach the court concerned and seek an order permitting the petitioner to depart from India.

¶15However, learned counsel for the petitioner has submitted that the petitioner is presently in Kuwait in connection with his employment and it will be very difficult for him to travel all along from Kuwait to Unnao to seek requisite orders.

¶16In view of the aforesaid facts, we permit that application for seeking the requisite order from the Court where the charge sheet in relation to the F.I.R. No.0576 of 2020, P.S. Kotwali, Unnao under Section 452, 323, 504 and 506 is pending, shall be moved through a counsel, who may represent the petitioner. Affidavits and other requisite pleading may be filed by his wife or any other close relative. In case any such application is preferred by the petitioner, the Court concerned shall consider the same and take appropriate decision in accordance with law considering the provisions contained in Office Memorandums dated 10.10.2019 and 25.08.1993 issued by the Government of India in the Ministry of External Affairs.

¶17The decision by the court concerned shall be taken within 10 days from the date any such application is made by the petitioner through his counsel before the Court concerned.

¶18Once any such order is passed by the Court concerned, the case of the petitioner for renewal/ re-issue of passport shall be considered and appropriate decision shall be taken by the competent authority within next ten days.

¶19With the aforesaid observations and directions, the writ petition is finally disposed of."

¶4Considering the facts and circumstances, we deem it appropriate to permit the petitioner to approach the competent Criminal Court to seek permission. In case any such application is moved within two weeks from today, the same would be considered and decided by the Court concerned, thereafter, the petitioner would be at liberty to press the application for issuing passport before the Passport Authority, which would also be addressed expeditiously in accordance with law. .

¶5With these observations, the writ petition is disposed of. Order Date :- 5.12.2023 Vijay High Court of Judicature at Allahabad