The Kerala High Court on Thursday issued guidelines to the Passport Authority and the Judicial Magistrate to be considered to grant the issuance of a passport to a person accused of an offence.
The Single bench of Justice Bechu Kurian Thomas made important observations and also issued guidelines for “issuance of passport” to a person accused in a crime. The bench also asserted the need of the parameters that govern the grant of passport.
“the pendency of a criminal proceeding is not a bar for obtaining a passport or for travelling abroad”in the order of the Kerala High Court
The bench also discussed the pristine principle which grants benefit to the accused person and said;
“an accused is presumed innocent unless and until he is found guilty.”in the order of the Kerala High Court
In the matter, the petitioner Thadevoose Sebastian, lost his passport at Nedumbassery Airport upon arrival in April 2012. He then informed the police but he didnot received useful information from the police relating to the missing passport.
On the very same day, he also come to know that an FIR has been registered against him at Ernakulam Rural Police Station, he has been accused of illegal possession of the passport of the defacto complainant by committing a breach of trust. It was also alleged that the petitioner travelled to Sharjah with the defacto complainant.
The petitioner, contended that he has been stucked in India, and has not returned back to Sharja till date due to the aforenoted crime was registered against him.
In December 2014, the petitioner received the information from the passport office that his file for issuance of passport was closed due to the adverse report on the pendency of the crime.
After five year the FIR against him was closed and Police dropped the proceedings against him, the petitioner then applied afresh for passport.
“Petitioner contends that despite having proper police clearance and despite the closure of the crime registered against him, the passport authorities are harassing him by referring to those false crimes”, the petitioner contended.
The petitioner submitted to the authority that it is not needed to get permission from the Magistrate’s Court, as the charges have been dropped and the police has filed closure report in the case.
In the contrary, the learned counsel for the petitioner submitted that, “it is now reliably learnt that the police are yet to complete the investigation”.
The bench mentioned the relevant sections of the Passports Act, 1967.
“An application for obtaining a passport has to be submitted under section 5 of the Act while the refusal of a passport is dealt with under section 6 of the Act. Applicants for issuance of passport who are facing criminal proceedings are dealt with under section 6(2)(f)”, in the order
The bench further said that, bare reading the provisions under the act, may indicate that the passport issuing authority shall be bound to reject the application for issuance of a passport if “criminal proceedings are pending” in any Court in India.
The bench said that right to travel is secured under the personal liberty under Article 21 of the Constitution of India. It referred, “Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi and Others (AIR 1967 SC 1836) and Maneka Gandhi v. Union of India and Another [(1978) 1 SCC 248]” cases.
“However comprehensive the said liberty be, it is still subject to ‘procedure established by law’. Thus after the enactment of the Act in 1967, a law came into existence which enabled denial merely on the ground of existence of a criminal proceeding. Another facet of Article 21 that encapsulates every law, laying down a procedure to deprive the personal liberty of a person is the triplet of ‘just, fair and reasonable‘”, the bench said.
The bench also referred GSR 570(E), which provides remedy to the citizens who has been accused in criminal cases.
“the Central Government, being of the opinion that it is necessary in public 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 subsection (2) of Section 6 of the said Act,”, in the order.
The bench further said that, GSR 570(E) is statutory in character.
The bench refer the relevant decision in ‘Ashok Kumar v. State of Kerala (2009 (2) KLT 712)’ case, in which the bench referring the notification GSR 570(E), rejected the the refusal of the Magistrate, and has “granted permission to the accused to travel abroad”.
The bench also stated that, after consideration of the notification and the act, there is still “lacuna about the parameters” to govern the grant of of no objection by the criminal courts.
“Though it is for the legislature to fill up the lacuna by recourse to its rule making power or through proper amendments, such amendments have unfortunately not been forthcoming. It is essential that till then there must be some yardstick to govern the grant of such no objections by criminal courts as otherwise, there is a possibility of the grant of permission turning into a subjective satisfaction rather than an objective one”, in the order.
The bench further referred various decisions of the court as;
- “criminal proceeding is pending only when cognizance is taken and in the absence of a final report filed in court, a criminal case cannot be treated as pending.”, Muhammed v. Union of India and Others (2018 (4) KHC 945)
- “mere property disputes or family disputes masquerading as crimes cannot deprive a person of his or her fundamental right to travel“, Jayan V.M. @ Jayasoorya v. Union of India and Others (2018 KHC 823).
- “Criminal Court is vested with ample powers to issue directions for providing passport for a specific period and the Magistrate can fix the period for travelling abroad or even issue directions to issue the passport for a specified period in accordance with the facts and circumstances of each and every case.”, Mohamad Shafi v. Regional Passport Officer (2017 (2) KHC 484)
- “the gravity of the offence alleged cannot be the sole basis to decline permission to go abroad for a short period and the Magistrate can allow the application to travel abroad by imposing adequate safeguards for securing the presence of accused for trial.”, Muhammed v. State of Kerala and Another (2012 (4) KHC 553)
- “the Court where the case is presently pending has to decide whether the applicant is entitled to get a passport as well as the period for which he is entitled to hold the passport and the court has also to keep in mind the fact that pendency of a criminal case shall not stand in the way or cause hindrance to decide the future of an applicant.”, Akhilesh v. State of Kerala and Others (2021 (2) KHC 752)
The bench further stated that false prosecutions impacts the career and future of a person.
“The fact that false prosecutions can mar the career and future of a person is also a factor that may well not be ignored while considering the grant of permission. This Court cannot also lose sight of the fact that criminal trials in our Country take ages to complete, notwithstanding the efforts at reducing delay.”
The bench further said that, “the pendency of a criminal proceeding is not a bar for obtaining a passport or for travelling abroad” and till then court may grant permission for the period when required in the proceedings.
“It is for the legislature to fill up the lacuna by recourse to its rule making power or through proper amendments, such amendments have unfortunately not been forthcoming. It is essential that till then there must be some yardstick to govern the grant of such no objections by criminal courts as otherwise, there is a possibility of the grant of permission turning into a subjective satisfaction rather than an objective one”
The bench then directed the petitioner to approach the jurisdictional Magistrate and obtain appropriate orders. Also stated that, the Passport Authority may issue passport to a person if the final report has not filed and also if congcognizance not taken then.
“if the final report has not been filed and cognizance not taken yet, there is no criminal proceeding pending and the Passport Authority is free to decide the grant of passport without permission from the Magistrate.”in the order