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Karnataka HC : Passport authority cannot refuse renewal due to pending criminal case

passport authority shall refuse to issue a passport but can not refuse renewal : Karnataka HC
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The Karnataka High Court bench of Justice Hemant Chandangoudar early this month, in the matter of Krishna Chiranjeevi Rao Palukuri Venkata Vs UOI, held that passport authority can not refuse renewal of the passport if criminal case is pending against the applicant in India.

“A reading of Section 6(2)(f) of the Passport Act indicates that, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country, if a criminal proceeding is pending against the applicant in India . However, the said provision does not provide for refusing to issue a passport for a person who intends to travel back to India.”, from the order.

In the matter, the applicant was working abroad from year 2002. He moved to Tanzania in year 2002, then in 2006 he moved to USA on HIB visa. In year 2010 he renewed his passport. He also traveled to India in Dec 2019 for visa interview and went back in Jan this year, to USA after the completion of process.

He applied for renewal of the passport in Jan this year through his travel agency which was due to expire on July. He followed the passport authority several times through email requesting to renew his passport.

In June this year, he was informed that a criminal case has been pending against him and refused to renew the passport. He then replied to the authority that he has no knowledge of any case, also requested to issue a temporary password to travel back India to “ascertain the details of alleged criminal case pending against him”.

The learned counsel for the petitioner submitted that, pending criminal case against the applicant is not a ground of “refusal of renewal of passport”. He relied on the Delhi High Court judgement in Ashok Khanna Vs CBI which states:

“Section 6(2)(f) of the Passport Act, 1967 is not applicable to cases where an applicant seeks for renewal of passport and is applicable to cases for issuing fresh passport”

He further submitted that, “Right to travel is indeed a fundamental right”.

“Right to travel is indeed a fundamental right and the same cannot be arbitrarily and illegally denied by the State.”

The learned ASG for the respondent submitted that, a criminal case is pending against the applicant and also that non bailable warrant has been issued against him. Also submitted the notification issued by the Government of India.

“since a criminal case is pending against the Petitioner, he cannot be issued with passport as stipulated u/s 6(2)(f) of the Passport Act. However, the said request can be considered subject to the condition that the written permission is granted by the Court concerned allowing the applicant to travel abroad which is provided under the Notification bearing No.GSR 570(E) dated 25.8.1993 issued by the Ministry External Affairs, Government of India.”

The learned ASG further submitted that “the petitioner cannot insist for renewal of his passport to travel to India and he can obtain an Emergency Certificate to travel to India.”

The bench relying on the judgement in Ashok Khanna –vs- CBI said that, “provision clearly indicates that it is applicable only for issuing a fresh passport and not for renewal of passport”.

“Delhi High Court while interpreting Section 6 of the Passport Act, 1967 has held that the Passport Authority can refuse to issue passport or an endorsement for visiting any country but nowhere in the provision it is mentioned that even for renewal of passport, the Authority can refuse to renew the passport.”

The bench over the notification by the Government Of India said that its is not applicable in the case.

“The said Notification is applicable to an applicant requesting for issuing passport so as to travel abroad. It is not the case of the Petitioner that he intends to travel abroad. Petitioner is requesting for renewal of passport which he has submitted in Form EA (P)-2 and in the said Form there is no requirement for obtaining permission from the jurisdictional magistrate before whom a criminal case is pending to travel abroad. The said notification applies to an applicant who intends to travel abroad against whom a criminal case is pending.”

Over the Emergency Certificate, the bech said that its is not applicable in the case.

“Petitioner does not fall in any of the classes of persons listed in the said schedule. It is also a fact, that the petitioner’s passport has not been refused and also not impounded or revoked. Hence, the Rules providing for obtaining Emergency Certificate is not applicable to the petitioner’s case.”

The bench referring the Satwant Singh Sawhney case said that “no person can be deprived of his right”.

“that under Article 21 of the Constitution of India, no person can be deprived of his right to travel except according to procedure established by law. Hence, Petitioner’s right to travel cannot be curtailed on the pretext that a criminal case is pending against him by refusing to renew his passport.”

The bench states that, petitioner can not be held guilty that no document was produced to establish that applicant was served with summon by Jurisdictional Magistrate.

The bench directed the authority to renew the passport for the applicant for a period of nine months with bank guarantee. The applicant is also directed to appear in the criminal case pending against him within six months.

“For the aforesaid discussion , I am of the view that the Petitioner is entitled for renewal of his passport for a limited period subject to certain terms and conditions.”

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