Santhosh Kumar vs Union Of India

Murali Purushothaman, J

The petitioner was issued with Ext.P2 passport on 2.6.2002. The said passport was renewed for a period from 1.5.2012 to 30.4.2022. The copy of

the relevant page of the passport is produced as Ext.P3. The petitioner has applied for renewal of the said passport. The learned counsel for the

petitioner submits that the petitioner is an accused in C.C No.572/2005 pending before the Court of Judicial first Class Magistrate-III,

Thiruvananthapuram which is now re-filed as C.C No.1280/2012. The counsel further submits that the application of the petitioner for renewal of

passport is not considered citing the pendency of the said criminal case. It is also submitted that the VISA of the petitioner would expire on 28.2.2022

and if the passport is not renewed, the petitioner will lose his job abroad.

The Passports Act, 1967 provides for the issue of passports and travel documents, to regulate the departure from India of citizens of India and for

other persons and for matters incidental or ancillary thereto. Section 5 of the Passports Act deals with applications for passports and travel documents

and Section 6 deals with refusal of passports, travel documents etc. and Clause (f) of sub-section (2) of Section 6 provides that, the passport authority

shall refuse to issue a passport or travel document for visiting any foreign country in case the proceedings in respect of an offence alleged to have

been committed by the applicant are pending before a criminal court in India.

As per GSR 570 (E) Notification dated 25.08.1993, the Government of India, Ministry of External Affairs in exercise of powers conferred by

clause (a) Section 22 of the Passports Act, 1967 has exempted 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 produces orders from the Court concerned permitting them to depart

from India, from the operation of the provisions of clause (f) of sub-section (2) of Section 6 of the Passports Act subject to the following conditions

namely:-

“(a) the passport to be issued to every such citizen shall be issued-

(i). for the period specified in order of the court referred to above, if the court specifies a period for which the passport has to be issued; or

(ii). if no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period of one year;.

(iii). if such order gives permission to travel abroad for a period less than one year, but does not specify the period validity of the passport, the passport shall be

issued for one year; or

(iv). if such order gives permission to travel abroad for a period exceeding one year, and does not specify the validity of the passport, then the passport shall be

issued for the period of travel abroad specified in the order.

(b) any passport issued in terms of (a) (ii) and (a) (iii) above can be further renewed for one year at a time, provided the applicant has not traveled abroad for the

period sanctioned by the court; and provided further that, in the meantime, the order of the court is not cancelled or modified;

(c) any passport issued in terms of (a) (i) above can be further renewed only on the basis of a fresh court order specifying a further period of validity of the passport

or specifying a period for travel abroad;

(d) the said citizen shall give an undertaking in writing to the passport issuing authority that he shall, if required by the court concerned, appear before it at any time

during the continuance in force of the passport so issued.â€​

This Court, in Thadevoose Sebastian v. The Regional Passport Office and another [2021 (5) KHC 625: 2021 (5) KLT 531: ILR 2021 (4) Ker. 453],

on a consideration of GSR 570 (E) Notification, the provisions of the Passports Act and various decisions on the subject, observed that, there are still

lacuna about the parameters that govern the grant of no objection by the criminal courts and it is for the legislature to fill up the lacuna by recourse to

its rule making power or through proper amendments. This Court further observed that, 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. To avoid subjectivity, this Court laid down the parameters that shall govern the grant of permission by the

criminal courts in the matter of issuance of passports to those involved in criminal proceedings pending in Courts as follows:

(i) The stage of the criminal proceeding and the duration of time within which the trial may take place;

(ii) The criminal antecedents and past conduct of the accused;

(iii) The nature and gravity of the crime; offences under Statutes dealing with acts of terrorism and acts of smuggling should require a different consideration.

(iv) In heinous crimes, if the court decides to grant permission, the period for which permission is granted can be limited;

(v) Chances of the accused fleeing or evading the trial in the case;

(vi) 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.

(vii) 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.

This Court observed that the parameters laid down as above are not exhaustive.

In the light of the notification referred to above and the decision of this Court in Thadevoose Sebastian (supra), this writ petition is disposed of with

direction that if the petitioner files application for No Objection for renewal/issuance of passport before the Court of Judicial First Class Magistrate-III,

Thiruvananthapuram in C.C.No.1280/2012, the same shall be considered in accordance with the parameters under the General Statutory Rules issued

by the first respondent under clause (a) of Section 22 of the Passports Act and the parameters laid down by this Court in Thadevoose Sebastian

(supra).