Imtizaj-Ul-Hussain Shah vs Union Of India And Another

Sanjay Dhar, J

The petitioner has filed the instant writ petition seeking a direction upon respondent No.2 to consider his passport application ARN No.21-0004757638 dated 18.06.2021. It has been submitted in the writ petition that the petitioner had applied for issuance of passport in terms of aforesaid application but the passport is not being issued in his favour. According to the petitioner he has been convicted in case FIR No.24 of 2013 by the Court of learned Special Judge, Anti-Corruption, Srinagar in terms of judgment dated 25.04.2018 and has been sentenced to undergo simple imprisonment of one year, out of which, he has served half of the sentence. It has been submitted that the petitioner has filed criminal appeal bearing CRA No.12/2018 which is still pending before this Court.

According to the petitioner he has been selected for undergoing MBBS Course under South Asian Association for Regional Cooperation quota but in the absence of passport he is unable to join the said course. The petitioner has pleaded that in similar circumstances, the respondent passport authority has issued passport in favour of one Sadam Farooq.

Reply on behalf of the respondent-passport authority has been filed. In the reply, while admitting that the petitioner has applied for issuance of passport, it has been submitted that the petitioner has been convicted of offence under Section 5 (1) (d) read with Section 6 (2) of Prevention of Corruption Act read with 120 RPC and 420 RPC and he has been sentenced to undergo simple imprisonment for one year in both the offences. It has been submitted that a show cause notice was issued on 01.11.2021 to the petitioner to furnish No Objection Certificate (NOC) from the Court where the appeal is pending, but he has not furnished the requisite NOC, as a result of which the passport authority could not issue the passport in his favour.

Respondent No.2 has pressed into service Section 6 (2) (f) of the Passport Act to contend that issuance of passport can be refused if the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court. It has been submitted that the petitioner had earlier filed another writ petition bearing WP(C) No.1291/2021 before this Court that was dismissed as withdrawn with liberty to the petitioner to approach the court where the appeal is pending, but instead of doing so he has filed the instant writ petition.

Heard and considered.

It is an admitted fact that the petitioner has been convicted by a criminal court and he has been sentenced to undergo simple imprisonment for a period of one year. It is also an admitted fact that appeal against the judgment of conviction filed by the petitioner is pending before this Court. As per clause (f) of sub section (2) of Section 6 of the Passports Act, the travel document in favour of an applicant, against whom proceedings in respect of offence alleged to have been committed by such applicant are pending before a criminal court, can be refused. However, vide Notification No.570(E) dated 25.08.1993, issued by Government of India, Ministry of External Affairs, the citizens of India against whom proceedings in respect of an offence alleged to have been committed are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, have been exempted from Clause (f) of sub section (2) of Section 6 of the Passport Act.

In view of the aforesaid notification, notwithstanding the provisions contained in Section 6 (2) (f) of the Passports Act, which is attracted to the instant case because criminal proceedings against the petitioner are pending before the appellate court, he can be issued passport/travel document subject to appropriate orders from the court where the proceedings are pending, which in the instant case is the bench of the High Court which is hearing the appeal filed by the petitioner.

It seems that it is on account of aforesaid position of law that earlier writ petition filed by the petitioner was dismissed as withdrawn with liberty to the petitioner to approach the concerned court for grant of No Objection Certificate, but instead of doing so, the petitioner has again invoked the writ jurisdiction of this Court which is nothing but abuse of process of the Court.

In view of the above, the writ petition is dismissed with liberty to the petitioner to file an application in the criminal appeal filed by him, which is pending before this Court, for seeking permission of the Court to deport from India.