Sunday, 12 August 2018

Whether passport can be denied to a person if criminal appeal pending against him?

Obviously, therefore, the respondent in an appeal against an order
of acquittal is one who should be available to the jurisdiction of the
appellate Court, which is in seison (sic) of the appeal against the order of
acquittal.  Clause (f) of Section 6(2) of the Act provides an embargo on
issuance of a passport if proceedings in respect of an offence alleged to
have been committed by the applicant are pending before a Criminal
Court in India. The distinction between being charged of an offence
and charge being framed in relation to an offence has always been
maintained.  See for support Lt. Col. S.K. Kashyap and another vs.
State of Rajasthan . The appellate Court, even if it is the High Court, is a
Criminal Court when it sits and decides matters in criminal jurisdiction.
This is a well settled principle of law.

9.       Hence, if proceedings in respect of an offence alleged to have been
committed by the applicant for Passport are pending before the appellate
Court; the High Court in this case; that is ground enough for the Passport
Officer to be compelled by the opening part of Sub-section (2) of Section 6
of the Act to refuse issuance of such Passport.

ANDHRA PRADESH HIGH COURT                     

WRIT APPEAL No.1026 of 2018    

Dated:01.08.2018 

Subhas Chandra Bose Mandava, Vs Union of India,


HONBLE THE CHIEF JUSTICE SRI THOTTATHIL B. RADHAKRISHNAN             
AND  
HONBLE SRI JUSTICE V. RAMASUBRAMANIAN           




Judgment: (per the Honble the Chief Justice Sri Thottathil B. Radhakrishnan)
      This appeal is against a final order passed in a Writ Petition relating
to issues arising from the application of the Passports Act, 1967;
hereinafter referred to as the Act.
2.      The appellant-writ petitioner applied for passport.  He signed a
declaration which is part of that application.  The said declaration
contains the affirmation to the following effect.

       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.

3.      The Passport Officer issued a notice calling upon the appellant-writ
petitioner to state as to why he suppressed the pendency of a Criminal
Appeal before this Court against an order of acquittal passed in favour of
the appellant-writ petitioner in a Criminal Case which was charged
against him for commission of offences punishable among other counts
with the provisions of the Prevention of Corruption Act, 1988.  He was also
required by the Passport Officer to produce order from this High Court for
processing the application for issuance of passport.

4.      The challenge levied by the appellant-writ petitioner to the aforesaid
direction of the Passport Officer found its waterloo at the hands of the
learned Single Judge.  Hence, this appeal.

5.      Learned counsel for the appellant-writ petitioner argued that there
is no case in which the appellant-writ petitioner stands charged with
criminal proceedings; nor is there any arrest warrant or summons
pending before any Court of Law in India against him.  He accordingly
argued that there is no foundation to link the criminal appeal pending
before this Court against the order of acquittal since such proceedings do
not amount to one being charged with criminal proceedings.

6.      Learned Assistant Solicitor General referred to Section 6(2) of the
Act, which provides the various grounds on which the Passport Authority
is obliged in law to refuse to issue passport or travel document for visiting
foreign countries.  This includes Clause (f) to the effect that the Passport
Authority shall refuse to issue a passport or travel document for visiting
any foreign country if the proceedings in respect of an offence alleged to
have been committed by the applicant are pending before a Criminal
Court in India.

7.      What is pending before this Court is an appeal against an order of
acquittal, which is governed by the provisions of the Code of Criminal
Procedure, 1973; hereinafter referred to as the Code.

8.      Section 384 of the Code provides for summary dismissal of appeal
including an appeal against an order of acquittal. Section 385 of the Code
provides the procedure for hearing the appeals, not dismissed summarily.
It enjoins causing a notice of the time and place at which such appeal will
be heard.  In the case in hand, there is such an appeal pending before this
Court and the appellant-writ petitioner has been notified of such appeal.
The power of the High Court under Section 386 of the Code includes the
power in relation to appeal from an order of acquittal. Such power
provides for reversal of the order of acquittal and direct that further
enquiry to be made, or that the accused be re-tried or committed for trial,
as the case may be, or find him guilty and pass sentence on him according
to law.  Obviously, therefore, the respondent in an appeal against an order
of acquittal is one who should be available to the jurisdiction of the
appellate Court, which is in seison (sic) of the appeal against the order of
acquittal.  Clause (f) of Section 6(2) of the Act provides an embargo on
issuance of a passport if proceedings in respect of an offence alleged to
have been committed by the applicant are pending before a Criminal
Court in India. The distinction between being charged of an offence
and charge being framed in relation to an offence has always been
maintained.  See for support Lt. Col. S.K. Kashyap and another vs.
State of Rajasthan . The appellate Court, even if it is the High Court, is a
Criminal Court when it sits and decides matters in criminal jurisdiction.
This is a well settled principle of law.

9.       Hence, if proceedings in respect of an offence alleged to have been
committed by the applicant for Passport are pending before the appellate
Court; the High Court in this case; that is ground enough for the Passport
Officer to be compelled by the opening part of Sub-section (2) of Section 6
of the Act to refuse issuance of such Passport.

10.     However, the Government of India have issued a notification in
exercise of authority under Clause (a) of Section 22 of the Act on
26.8.1993. That notification was published with GSR No. 570(E), which,
among other things, provides for issuance of a passport with due
compliance of the conditions imposed therein.  The impugned order issued
by the Passport Officer to the applicant is essentially extending to him an
opportunity, and in a way an advice, to seek the benefit of such
notification and produce orders from the High Court, where the aforenoted
criminal proceedings are pending.

11.     In the aforesaid view of the matter, we do not find any illegality,
infirmity or jurisdictional error in the order of the learned Single Judge.
The Writ Appeal fails and is dismissed accordingly.
      Pending miscellaneous petitions, if any, shall also stand closed.  No
order as to costs.
_________________________________________       
THOTTATHIL B. RADHAKRISHNAN, CJ       
____________________________     
V. RAMASUBRAMANIAN, J      
Date: 1st August, 2018
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