Kerala High Court: Bechu Kurian Thomas, J., held that if the final report had not been filed and no cognizance had been taken it would mean that there is no criminal proceeding pending and the Passport Authority are free to decide the grant of passport.

The petitioner had challenged communication issued by the Regional Passport Officer informing him of the shortcomings in his application for issuance of a passport.

Noticeably, the petitioner was involved in a case for offences under Sections 406, 419 and 420 of IPC apart from sections 12(1)(a), (d) of Passports Act, 1967. Claiming that the police had dropped the proceedings against him the petitioner had applied for issuance of passport which was earlier denied due to adverse report on the pendency of the crime. The petitioner contended that despite having proper police clearance and despite the closure of the crime registered against him, the passport authorities were harassing him by referring to those false crimes.

Section 6(2)(f) of the Passports Act, 1967 makes it mandatory for the passport issuing authority to reject the application for issuance of a passport if “criminal proceedings are pending” in any Court in India.

Thus to make the deprivation of the personal liberty of the right to travel abroad, just, fair and reasonable, the Government of India in exercise of the powers under section 22 of the Act, issued a notification (as GSR 570(E) dated 25-8-1993), which is statutory in character, exempting citizens of India against whom criminal proceedings are pending before a criminal court from the operation of section 6(2)(f) of the Act on condition that the applicant produces orders from the Court concerned permitting to depart from India.

Opining that there are still lacuna about the parameters that govern the grant of no objection by the criminal courts, the Bench stated that though it is for the legislature to fill up the lacuna through proper amendments, in the absence of such amendments, the Bench expressed,

“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 Muhammed v. Union of India, 2018 (4) KHC 945, the Court had clarified that, a 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. It was also held that mere registration of a crime does not invoke either section 6 or section 10 of the Act and the police verification report must mention the stage of the crime.

Motivated by the pristine principle that an accused is presumed innocent unless and until he is found guilty, and the fact that false prosecutions can mar the career and future of a person and  that criminal trials take ages to complete, the Bench expressed that,

“The grant of permission by the Magistrate enabling an accused to travel abroad will be of great significance, especially since it will be a process of balancing the fundamental right of a citizen to travel abroad and the need to ensure the presence of the accused during trial.”

Foreseeing the probability of such consideration by Magistrate being of subjective satisfaction rather than the required objective satisfaction, and to avoid the same, the Bench laid down following parameters to govern the grant of permission for future guidance:

  1. “The stage of the criminal proceeding and the duration of time within which the trial may take place;
  2. The criminal antecedents and past conduct of the accused;
  3. The nature and gravity of the crime; offences under Statutes dealing with acts of terrorism and acts of smuggling should require a different consideration.
  4. In heinous crimes, if the court decides to grant permission, the period for which permission is granted can be limited;
  5. Chances of the accused fleeing or evading the trial in the case;
  6. Mode in which the presence of the accused can be ensured during trial, including stipulating conditions like providing the address/ change of address in the country of residence abroad, either with the Indian Consulate at the country of residence abroad or with the Court where the trial is pending.
  7. Since in cases where time is not fixed by the Magistrate while granting permission, the Passport authorities are issuing passports only for one year, the period for which the accused can be permitted to travel can also be fixed by the Magistrate, while granting permission.”

Emphasising that aim of granting permission is to balance the competing claims of fundamental right to travel abroad and the need to ensure the presence of the accused during trial, the Bench clarified that the parameters laid down were not exhaustive.

Resultantly, the petitioner was directed to approach the jurisdictional Magistrate and obtain appropriate orders if the final report had been filed and cognizance taken. However, in case the final report had not been filed and cognizance not taken yet, the Bench clarified that that would imply that no criminal is proceeding pending and the Passport Authority would be free to decide the grant of passport without permission from the Magistrate.  [Thadevoose Sebastian v. Regional Passport Office, WP(c) No. 15182 of 2021, decided on 30-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate S.Saju, Advocate A.V.Sajan, Advocate Neelanjana Nair and Advocate Pooja Sebastian

For the Respondent: ASG P. Vijayakumar and CGC Jaishanker

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