Allahabad High Court: In a writ petition filed for directing the Regional Passport Officer, for issuance of passport to him as per the notification dated 25-08-1993 issued by the Ministry of External Affairs, the division bench of Rajan Roy and Om Prakash Shukla*, JJ. held that in all cases where criminal proceedings were pending and where the issuance of a passport had been denied under the operation of Section 6(2)(f) of the Passport Act, 1967, the under-trial, as a condition precedent, had to first seek permission or an NOC from the Court concerned, where the trial was pending, to travel abroad or depart, for which a passport was required. Only then, as a condition subsequent, could the applicant apply to the passport authority for the issuance of the passport for a period as specified in the permission order or for the period specified in the notification dated 25-08-1993.
Background
The petitioner, a practicing Advocate of this Court, had applied for the issuance of a fresh passport, wherein certain adverse reports were submitted by the police to the Passport Officer relating to the pendency of two criminal cases against the petitioner. The petitioner’s case was that, as an undertrial, he had filed an application before the Court of ACJM, CBI on 05-06-2024, which had been disposed of by an order dated 30-07-2024, on the grounds that there was no need to take permission from the Trial Court for obtaining a passport in view of the judgment dated 25-06-2024 rendered by a Co-ordinate Bench in Umapati v. Union of India1. As for the other criminal case, the petitioner had enclosed a copy of the report submitted by the Sub Inspector the Court of ACJM, CBI, in which the Sub Inspector reported that the then Investigating Officer had forwarded/submitted final report to the Court concerned. The petitioner, armed with the aforesaid orders, had approached the Regional Passport Officer, who had advised that verification of the said orders would be done by the police concerned, and the Regional Passport Officer would act accordingly. In this background, the petitioner’s grievance was that, since no passport had been issued to him, directions should be given to the authority concerned as per the Notification of the Ministry of External Affairs, New Delhi dated 25-08-1993.
Issue
Whether there is any requirement under the Passport Act, 1967 for an under trial to obtain permission/’NOC’ from the Court where his trial is pending for going abroad and for issuance of Passport or for its renewal.
Analysis and Decision
The Court took note of the Passport Act, 1967, specifically Section 6(2)(f) of the Act, which, in categorical terms, mandated the Passport Authority to refuse the issuance of a passport or travel document for visiting any foreign country under Clause (c) of sub-section (2) of Section 5, on the ground that proceedings in respect of an offence alleged to have been committed by the applicant were pending before a criminal court in India.
The Court noted that the word ‘shall’ used in Section 6(2) of the Passport Act, 1967 indicated the mandatory or binding nature of the provision, leaving no room for discretion. Section 6(2)(f) was seen as a reasonable restriction imposed by law within the framework of Article 19(f) of the Constitution of India, which debarred the issuance of a passport where proceedings in respect of an offence alleged to have been committed by the applicant were pending before a criminal court in India.
Further, the Court referred to Section 22 of the 1967 Act, which was an exception carved out from the restrictions imposed by the Act itself. The aforesaid Section 22 conferred on the Central Government the power to exempt individuals where it was of the opinion that it was necessary or expedient in the public interest to do so, by a Notification in the Official Gazette. Such an exemption by Notification included the exemption of any person or class of persons from the operation of all or any of the provisions of the Act or the Rules made thereunder. In this regard, to provide such an exemption, the Central Government, exercising the powers conferred under Section 22 of the Passport Act, 1967, had published the Official Gazette notification dated 25-08-1993.
The Court said that, in view thereof, it could be safely deduced that the provision of Section 6(2)(f) of the Act, 1967 did not impose an absolute bar on the issuance of passports to individuals against whom criminal proceedings were pending. The Court further noted that Section 22 of the Passport Act, 1967 provided the Central Government with the power to grant exemptions from the application of all or any provisions of the Passport Act, 1967. This power had been exercised through the issuance of the notification dated 25-08-1993.
The Court found that under Official Gazette Notification dated 25-08-1993, the Central Government had exempted individuals facing pending criminal proceedings from the restrictions imposed under Section 6(2)(f) of the Act, 1967, provided they obtained an order from the Court concerned permitting them to depart from India. Further, if the Court concerned granted permission, a passport could be issued for the duration specified in the order. In case no period was mentioned, the passport would be issued for a maximum of one year. In the absence of the Court’s order permitting departure from India, the restriction under Section 6(2)(f) of the Act, 1967 remained in force, preventing the issuance or renewal of the passport.
The Court also found that the aforesaid notification under Section 22 of the Act, 1967 had statutory backing and force. The requirement of obtaining ‘permission’ or ‘NOC’ for an undertrial to go abroad was a statutory requirement under the Act, 1967.
As to the period for which the passport could be issued, the Court noted from the aforesaid notification that, in cases under sub-clause (i), (iii), and (iv) of Clause (a), the Court not only granted permission to the under-trial to depart from India, but also specified a period for such departure. In such cases, the Passport Authority was bound to issue the passport for the period granted by the Court. However, in cases where the period of travel was less than one year, as per sub-clause (iii) of Clause (a), the passport would be issued for a period of one year.
Further, the Court noted that the Central Government had deliberately left the period for issuance of the passport to the discretion of the trial Court. However, if the Court granted permission for the applicant to depart from India but abstained from specifying the period, i.e., the trial Court refused to exercise its discretion in the first instance, then the power to determine the period reverted back to the residuary authority of the Central Government. This power was conferred on the Central Government by Section 22 of the Act, 1967. In such a case, the Central Government had fixed a reasonable period of one year, which the Court found to be in consonance with Section 22 of the Passport Act, 1967, as well as Article 19(5) of the Constitution of India, read in the context of Section 6(2)(f) of the 1967 Act.
The Court also said that there had been confusion regarding the procedure for processing the Passport Application among the authorities. In this regard, the Ministry of External Affairs had published an Office Memorandum dated 10-10-2019, prescribing guidelines/procedure for processing applications under Section 6(2)(f) of the Passport Act, 1967. According to the Memorandum, the applicant was required to submit an application or undertaking to the Passport Authorities, disclosing all pending criminal cases. If any cases were pending against the under-trial, the under-trial was required to obtain a ‘No Objection Certificate’ (NOC) from the Court concerned seeking leave to depart from India. Subsequently, a police verification was to be conducted by the police authorities, and subject to the police verification report, the passport authorities could either issue or reject the passport, providing reasons for their decision. The Court reminded that the said Memorandum was an extension of the earlier Notification, as it specifically recorded that the provisions of the Official Gazette Notification dated 25-08-1993 should be strictly applied in all cases, as it was a statutory notification forming part of the rules.
In the given circumstances, the Court concluded that although Section 6(2)(f) of the Passport Act, 1967 clearly provided that if proceedings in respect of an alleged offence committed by the petitioner were pending before a criminal Court in India, it constituted a ground for refusal of the issuance of a passport, the beneficial statutory notification dated 25-08-1993, read together with the Office Memorandum dated 10-10-2019, allowed the petitioner, upon submission of an NOC from the Court where the proceedings were pending, to be exempted from the operation of Section 6(2)(f) of the Passport Act, 1967. In such cases, the petitioner would be entitled to go abroad, and the issuance/renewal of the passport would be implicitly permitted.
After perusing the provisions of the Passport Act, 1967, and the beneficial notification issued under Section 22 of the Act, 1967, the Court held that in all cases where criminal proceedings were pending and where the issuance of a passport had been denied under the operation of Section 6(2)(f) of the Passport Act, 1967, the under-trial, as a condition precedent, had to first seek permission or an NOC from the Court concerned, where the trial was pending, to travel abroad or depart, for which a passport was required. Only then, as a condition subsequent, could the applicant apply to the passport authority for the issuance of the passport for a period as specified in the permission order or for the period specified in the notification dated 25-08-1993.
However, the Court highlighted that several under-trials, misinterpreting Section 6(2)(f) of the Act, 1967 and Office Memorandum dated 10-10-2019, had been obtaining NOCs from the Court for the re-issuance of passports instead of securing the order permitting the applicant to depart from India. Accordingly, the Ministry of External Affairs, with the intent to clarify the issue, had published an Office Memorandum dated 06-12-2024, stating that there was no legal provision requiring an applicant to obtain permission or an NOC from the Court concerned for the issuance or re-issuance of a passport. Instead, the applicant was required to obtain permission from the Court concerned specifically to depart from India or travel abroad.
The Court remarked that as per Official Gazette Notification the relaxation under Section 6(2)(f) of the Passport Act, 1967 applied only to those persons who produced orders from the Court concerned permitting them to depart India. Otherwise, the rigor of refusing the issuance of the passport would follow consequently.
In respect of another criminal case against the petitioner, the petitioner had submitted a document indicating the filing of a Final Report by the Investigating Officer. However, no order regarding the acceptance of the Final Report was presented. Consequently, the petitioner was directed to ascertain whether the Final Report had been accepted. If the report had been accepted, the petitioner was required to produce the order of acceptance before the Regional Passport Officer.
In the event that the Final Report had not been accepted or, if a protest application was pending and the matter was being further proceeded with, the petitioner was required to seek permission from the Court of criminal jurisdiction where the case was pending. Such permission was to be sought in accordance with the procedure discussed in the previous order. If the Court had granted a No Objection Certificate or permission for the petitioner to travel abroad, the petitioner was to submit the same to the Regional Passport Officer. Upon receipt of the NOC or permission, the Regional Passport Officer was to process the petitioner’s application for the issuance of a passport as per applicable laws and take a decision within three weeks from the submission of the NOC or permission.
[Mohd. Talha v. Union of India, WRIT – C No. 1775 of 2025, decided on 01-05-2025]
*Judgment Authored by: Justice Om Prakash Shukla
Advocates who appeared in this case :
Counsel for Petitioner:- Arshad Jameel, Mohd Amir Shazad, Mohd. Salman
Counsel for Respondent:- A.S.G.I., C.S.C
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1. Writ-C No. 5587 of 2024.