The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 30881 of 2022 An application under Articles 226 and 227 of the Constitution of India. --------------- Ashok Kumar Sipani .... Petitioner -Versus- Union of India and another .... Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. S. Das, A.K. Mohanty S.P. Tripathy, V.R. Behera, A. Mishra & I. Swain, Advocates For Opp. Parties : Mr. P.K. Parhi Deputy Solicitor General of India. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 23.12.2024 SASHIKANTA MISHRA, J. Being aggrieved by order passed by the Passport Officer, Bhubaneswar in impounding his Passport, the Page 1 of 19 petitioner has approached this Court seeking the following relief:- to admit “It is therefore prayed that this Hon’ble Court may be graciously pleased the writ application, issue notice to the opp. parties and after hearing the counsel from both the sides, allow the same and directing the opp. Parties to quash the impounding order dated 04.11.2022 and 10.11.2022 vide Annexure-1 and 2 respectively bearing Passport No. U1497323. And further be pleased to direct the opp. parties to restore the petitioner’s Passport vide No. U1497323 which is valid till 25.12.2029. And pass any other order/orders would be deem fit and proper as facts and circumstances of the case. And for the said act of kindness, the petitioner shall as in duty bound ever pray.” 2.
Facts
Bereft of unnecessarily details, the facts of the case are that the petitioner is the holder of Passport bearing No.U1497323 with validity up to 25.12.2029. Said Passport was granted on post Police Verification Report (PVR) basis. Subsequently, police submitted adverse PVR stating that the petitioner was involved in Jagatsinghpur Marine P.S. Case No. 26 dated 22.08.2010 under Sections 407/408/411/420/468/471/379/120(b) of IPC and the case has already been charge-sheeted. Accordingly, show Page 2 of 19 cause notice dtd. 27.01.2020 followed by reminder dated 15.04.2020 was issued to the petitioner. The petitioner
Legal Reasoning
approached this Court in W.P.(C) No.13013 of 2022 with prayer to release/restore the Passport. In the meantime, the petitioner was granted bail as per order passed by this Court in BLAPL No.16395 of 2010 in the aforementioned criminal case. This Court, by order dated 03.08.2022, disposed of the writ petition granting liberty to the petitioner to provide necessary documents before the Passport Authority and also directed the said authority, while considering the matter, to keep the judgment of this Court rendered in W.P.(C) No.4834 of 2022 in mind. In the meantime, the petitioner filed his show cause reply to the notice dated 18.08.2022, but, as the matter was delayed by the Passport Authority, he approached this Court again in WP(C) No.24843 of 2022. This Court disposed of the writ petition by order dated 13.10.2022 directing the Passport Authority to complete the exercise involved within a stipulated period. The Passport Authority, by order dated 04.11.2022, impounded the Passport of the Page 3 of 19 petitioner as per Section 10(3) (e) of the Passport Act. Said order was followed by order dated 10.11.2022 reiterating the order of impounding by distinguishing the case of Asutosh Amrit Patnaik [W.P.(C) No. 4834 of 2022)decided by this Court]. On such facts, the petitioner has approached this Court seeking the relief, as already stated hereinbefore. 3. Counter affidavit has been filed by the opposite parties, inter alia, stating that cognizance of criminal case by the Court against a person holding a valid Passport attracts Section 10(3)(e) of the Passport Act, 1967. Secondly, the petitioner is guilty of material suppression of facts, inasmuch as, while applying for Passport, he had not disclosed the fact of pendency of the criminal case against him, which attracts Section 10(3) (b) of the Act. Accordingly, show cause notice was issued to him on 27.03.2010 followed by reminder on 15.04.2010. Again show cause notice was issued on 22.04.2022 followed by reminder on 18.08.2022. In his reply dated 24.08.2022, the petitioner informed that inadvertently he had omitted Page 4 of 19 to mention about the pendency of the criminal case as he was under impression that the case had been closed as he was granted bail by this Court and there was no communication from the Court. Considering the petitioner’s reply, a sympathetic view has been taken and penal action under Section 10(3)(b) of the Act has been ignored. However, fact remains that a criminal case is still pending, while the petitioner holds a valid Passport, which attracts Section 10(3)(e) of the Act. It is further stated that the judgment passed in the case of Asutosh Amrit Patnaik (supra) involves a case of re-issue of Passport, which was refused under Section 6(2)(f) of the Act, as a criminal case was pending against the applicant. The present case attracts Section 10(3)(e) and not Section 6(2)(f) of the Act. Further, GSR 570 (E) only gives special permission for issue/re-issue of Passport to persons having criminal case pending against them and who are required to go abroad on emergency consideration. In such cases, a Short Validity Passport (SPV) is issued. Such is also not the case at hand. It is further stated that Page 5 of 19 remedy of appeal is provided against the order passed under Section 10(3) to the Appellate Authority being Joint Secretary (PSP) and Chief Passport Officer, which the petitioner has not invoked. 4. Heard Mr. Millan Kanungo, learned Senior Counsel with Sri S. Das for the petitioner and Mr. P.K. Parhi, learned Deputy Solicitor General of India for the Union of India. 5. Mr. Kanungo would argue that the criminal case in question having been compromised between the parties and sent to the dormant file with the petitioner being granted bail, he was under the bonafide impression that the case had been dropped, as there was no further communication from the Criminal Court. Nevertheless, mere pendency of a criminal case cannot be a bar for a person to travel abroad and his Passport cannot be impounded, as it would amount to violation of Article 21 of the Constitution of India. Mr. Kanungo relies upon the judgment of the Supreme Court in the case of Satwant Page 6 of 19 Singh Sawhney v. D. Ramarathnam and Others1. Mr. Kanungo further submits that the power under Section 10(3)(e) is a discretionary power, which does not provide that in every case, where criminal case is pending, the Passport must necessarily be impounded, but only in cases where there is flight risk that such a drastic step can be taken. Mr. Kanungo further relies upon a judgment passed by the Allahabad High Court in the case of Mohammad Umar v. Union of India and others2 wherein the above view was taken. 6. Mr. Parhi, learned DSGI, on the other hand, would argue that the petitioner is guilty of suppression of material facts, as he did not disclose the fact of pendency of the criminal case against him at the time of applying for the Passport. Secondly, show cause notice was issued before passing of the impugned order, as directed by this Court. Thirdly, the Passport Officer has passed a reasoned order and the petitioner, if aggrieved, should have preferred an appeal instead of directly approaching 1 AIR 1967 SC 1836 2 2024 SCC OnLine All 3867 Page 7 of 19 this Court. According to Mr. Parhi, therefore, the writ petition is not maintainable. 7. The first question that falls for consideration is whether the writ petition is maintainable in view of availability of alternative remedy in the statute. In this regard, the provision under Section 11 of the Passport Act, 1967 has been referred to, which reads as follows:- “1. Any person aggrieved by an order of the passport authority under clause (b) or clause (c) of sub-section (2) of section 5 or clause (b) of the proviso to section 7 or sub-section (1), or sub-section (3) of section 10 or by an order under sub-section (6) of section 10 of the authority is subordinate, may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed: the passport authority to whom Provided that no appeal shall lie against any order made by the Central Government. (2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefore: Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period. (3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Limitation Act, 1963 (36 of 1963), with respect to the computation of the periods of limitation thereunder. (4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a copy of the statement of the reasons for the order appealed against where such copy has been furnished to the appellant and [by such fee as may be prescribed for meeting the expenses that may be Page 8 of 19 in calling for relevant records and for incurred connected services. (5) the appellate authority shall follow such procedure as may be prescribed: In disposing of an appeal, Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of representing his case. the appellate authority (6) Every confirming, modifying or reversing the order appealed against shall be final.”
Decision
order of 8. The impugned order also informs that the petitioner may prefer an appeal under the above provision. It is stated that such appeal lies to the Joint Secretary (PSP) and Chief Passport Officer, PSP Division, the Ministry of External Affairs. Admittedly, the petitioner has not filed any appeal against the impugned orders. Ordinarily, on the face of alternative remedy being available, the writ Court would be slow to interfere. But, in the instant case, no disputed question of fact is involved, rather the lis involves interpretation of the provision under Section 10 (3)(e) of the Passport Act. Moreover, this is the third journey of the petitioner to this Court seeking redressal of the self-same grievance. Among the grounds of challenge urged in the present writ application is that the authorities have not properly Page 9 of 19 interpreted the directions issued by this Court in the earlier writ applications. Thus, the present writ application also involves interpretation of the earlier orders passed by this Court. Therefore, it would not be proper to relegate the petitioner to invoke the alternative statutory remedy of appeal at this stage, rather on the face of undisputed facts, this Court, in the interest of justice can attempt to bring about a quietus to lis by examining the legality of the impugned order vis-a-vis the statutory provisions. This Court, therefore, holds that notwithstanding the availability of alternative remedy of appeal, the writ petition would still be maintainable. 9. Having answered the preliminary objection raised by the opposite parties, the next question that falls for consideration is, whether the Passport Officer was justified in impounding the Passport of the petitioner by invoking the provision under Section 10(3) (e) of the Act. Before proceeding further, it would be apt to mention that the legal effect of holding a Passport is no longer res Page 10 of 19 integra having been delineated in the Constitution Bench decision of the Supreme Court in the case of Satwant Singh Sawhney (supra), cited by Mr. Kanungo, learned Senior Counsel. In that case, noting that a Passport is essentially required for a person travelling abroad, the Constitution Bench posed a question whether a person living in India has a fundamental right to travel abroad. In this context, it was held that under Article 21 of the Constitution, no person can be deprived of his right to travel, except according to procedure established by law. In the case of Maneka Gandhi v. Union of India,3 further analyzing the import of Article 21 of the Constitution, it was held that in quasi-judicial functions, the administrative authority must conform to the principle of natural justice. It was further held that every action of the executive Government must inform the reasons and should be free from arbitrariness, which is the very essence of rule of law and its basic minimum requirement. 10. The impugned order is to be tested in the light of the above salutary principle of law. As already stated, the 3 AIR 1978 SC 597 Page 11 of 19 only ground, on which the petitioner’s Passport was impounded, is pendency of a criminal case against him. Though much has been argued about the status of the case as also the fact that the petitioner is on bail in the said case, the same, in the considered view of this Court, is not very relevant, inasmuch as, the fact that a criminal case is pending is undeniable and hence, that alone is the material consideration. In this context, it would be useful to refer to Section 10 of the Passport Act, which reads as follows:- “10. Variation, impounding and revocation of passports and travel documents (1) The passport authority may, having regard to the (1) of section 6 or any provisions of sub-section notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice. (2) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescribed conditions) of the passport or travel document. Page 12 of 19 (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,- (a) if the passport authority is satisfied that the holder of the passport or in wrongful travel document possession thereof; is (b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf; [Provided that if the holder of such passport obtains another passport the passport authority shall also impound or cause to be impounded or revoke such other passport] (c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public; (d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; (e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India. (f) if any of the conditions of the passport or travel document has been contravened; (g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same; (h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting Page 13 of 19 the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made. (4) The passport authority may also revoke a passport or travel document on the application of the holder thereof. (5) Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel document under sub- section (1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India. friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy. (6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority. (7) A court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document: Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void. (8) An order of revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision. (9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, surrender the passport or travel document, if the Page 14 of 19 same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation.” 11. On a plain reading of the provision quoted above, it would be clear that power has been conferred on the authority to impound the Passport of a person, inter alia, on the ground of pendency of a criminal case against him. The use of word ‘may” in Sub-section (3) clearly signifies that the power so vested is discretionary and not to be construed as mandatory. In fact, in the judgment of the Allahabad High Court rendered in the case of Mohammad Umar(supra), the very same interpretation was made in the following words:- “11. We find that the legislature under Section 10 (3) (e) of the Passports Act, 1967 had deliberately used word ’may’ meaning thereby that in the eventualities enumerated under Section 3 of the Passports Act, 1967 of the passport officer by recording reasons can impound passport but it is not necessary that in every case falling under Section 3 the passport officer is mandatorily required to impound the passport. The legislature under Section 10 (e) has given power/discretion to the passport authority that if he is satisfied then he can impound the passport of a person on the ground of pending proceedings in relation to an offence in the criminal court, therefore prior to passing the order of impounding passport, the passport officer after considering the facts and circumstances of each case has to record reasons to arrive at a conclusion that due to pending criminal (3) Page 15 of 19 proceedings in a criminal court, the passport holder may misuse the passport for avoiding his appearance before the court and can delay the conclusion of the proceedings.” The Allahabad High Court further relied upon observations made by the Supreme Court in the case of Suresh Nanda v. CBI4 in its judgment. The following observations are noteworthy:- impounding civil “That consequences and in view of this, the Authorities are duty bound to give opportunity of hearing to the person concerned. passport entails of There is no doubt on this fact that discretion is vested with the Passport Authority in terms of section 10 of the Passports Act, 1967 but it is not at all mandatory on the passport authority to impound or cause to be impounded or revoke a passport or travel document if proceedings in respect of offence merely alleged to have been committed by the holder of the passport or travel document are pending before the Court in India. result Pendency of criminal case against the holder of passport would not automatically in impounding of his passport and the mere fact that certain conditions specified in Section 10 (3) of the Act, on the basis of which a passport can be impounded, subsists in a given case cannot by itself result in impounding of passport automatically and once the Passport Authority, in his wisdom, chooses to exercise his discretion in the said direction as to whether on account of pendency of such criminal case, the passport in question should be impounded or not, then, at the said point of time, the Passport Officer should apply his mind looking into the nature of the 4 (2008) 3 SCC 674 Page 16 of 19 criminal cases lodged/initiated that have been against the petitioner and further that if a passport is not impounded, then there are possibilities that the incumbent would not at all face the criminal cases. Even if criminal case is pending against a person that by itself does not require passport authority to impound/revoke the passport in every given case. It is only in appropriate cases for adequate and cogent reasons such an order could be passed. While passing order of impounding/revocation of passport, merely by quoting the requirement mentioned in the section is clearly indicative of circumstance that order has been passed without objective being consideration of the subject matter." there any 12. The impugned order does not whisper a word as to why the passport of the petitioner was considered necessary to be impounded or what consequences would have ensued if such a course of action is not undertaken. It is evident that the decision to impound the Passport was taken simply by observing that a criminal case is pending and by referring to the statutory provision without citing as to how it was considered necessary or what consequences would have followed, if such order would not be passed. It is trite law that when discretionary power is vested on a quasi judicial authority, it is absolutely necessary that proper reasons are to be cited by it, while determining or adjudicating any matter. Tested in the backdrop of the above requirement, the Page 17 of 19 impugned order falls short by a long margin and therefore, cannot be sustained. 13. As regards applicability or otherwise of the judgment of this Court in Ashutosh Amrit (supra), no doubt, the said case involved refusal of the authorities to renew a Passport, on the ground of pendency of criminal case, by invoking the provision under Section 6(2)(f) of the Act. But then, the basic reason, i.e., pendency of the criminal case, is common to both the cases. It would be absurd to hold that pendency of criminal case, as referred to in Section-6, would have a different consequence than Section-10. Evidently, only the action to be taken would be different, as both the provisions operate at different stages. However, the spirit behind the two provisions remains the same, i.e., effect of pendency of a criminal case on renewal of passport and on an existing passport. That apart, there is no absolute bar in the Act for issuing and renewing the passport on the ground of pendency of criminal case. As already stated, the provision under Section-10(3) is not mandatory, but discretionary. So, if Page 18 of 19 the provisions of the Act are read as a whole, it would imply that mere pendency of criminal case cannot, in all cases, lead to impounding of the Passport. 14. For the foregoing reasons therefore, this Court is of the considered view that the impugned orders cannot be sustained in the eye of law and therefore, deserve interference by this Court. 15. In the result, the writ petition is allowed. The impugned orders under Annexures-1 and 2 are hereby quashed. The opposite party-authorities are directed to restore the Passport in favour of the petitioner within two weeks from today. ……..………………….. (Sashikanta Mishra) Judge Orissa High Court, Cuttack, The 23rd December, 2024/‘B.C. Tudu, Sr. Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Dec-2024 17:27:16 Page 19 of 19