Jammu & Kashmir & Ladakh High Court: Subject To Court Orders In Pending Criminal Proceedings, A Person Can Be Issued Passport Or Travel Documents Despite Pending Criminal Cases

The Petitioner had challenged a communication issued by the Passport Office, which requested clarification regarding an adverse Police report and a 'NOC' from the concerned Court. The Petitioner previously held an Indian Passport and had applied for a renewal/fresh passport.

A Single Bench of Justice Sanjay Dhar held, “In the instant case, admittedly the proceedings in respect of a criminal case are pending against the petitioner before the court of Additional Sessions Judge (Anticorruption Cases) Jammu, therefore, if the said Court grants ‘NOC’ in favour of the petitioner, respondent No. 2 would be well within its powers to issue passport/ travel document in favour of the petitioner notwithstanding pendency of a criminal case against the petitioner.”

Advocate SS Ahmad appeared for the Petitioner, while DSGI Vishal Sharma represented the Respondents.

Brief Facts

It was submitted that pursuant to the aforesaid communication, the Petitioner had furnished a comprehensive explanation to the Passport Office and intimated him that the ACB had filed a charge sheet against the him in respect of an FIR for commission of offences under Sections 5(1)(d) and 5(2) of the J&K PC Act and Section 120-B of the RPC before the Court of Additional Sessions Judge (Anticorruption Cases).

The Petitioner challenged the impugned communication on the grounds that the same was illegal, arbitrary and contrary to the spirit of the Passports Act, 1967.

Court’s Observations

The High Court stated that the right to travel abroad was elevated to the status of fundamental right in terms of the ratio laid down by the Supreme Court in case of Menaka Gandhi v. Union of India (1978), therefore, “passport to an Indian citizen, cannot be refused or withheld without adopting the procedure prescribed under law.”

The Court explained that Clause (f) of sub-section (2) of Section 6 of the Passports Act provides that if the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India, it can form a ground for refusal of the passport or travel document.

“However, notification No. GSR 570(E) dated 25.08.1993, issued by the Government of India, Ministry of External Affairs, PSP Division, provides that even in cases where an applicant is facing criminal proceedings before a Criminal Court in India, passport or travel document can be issued to him, subject to certain conditions,” the bench noted.

“From a perusal of the aforesaid notification, it is clear that notwithstanding the provisions contained in Section 6(2)(f) of the Passport Act, an applicant can be issued passport/ travel document subject to the appropriate orders from the Court, where the proceedings are pending,” the Bench held.

Consequently, the Court ordered, “In view of the above, the writ petition is disposed of with a liberty to the petitioner to approach the concerned criminal Court with an application for seeking appropriate orders for issuance of passport/travel document in his favour. If and when such an application is made by the petitioner before the concerned criminal court, the same shall be considered by the said court on its own merits, notwithstanding the stay of the proceedings that may have been ordered by this Court in the petitions filed for challenging the charge sheet.”

Accordingly, the High Court disposed of the Petition.

Cause Title: Abdul Hamid v. Union of India & Anr. (WP(C) No. 3093/2024)

Appearance:

Petitioner: Advocates SS Ahmad and Zulkernain Choudhary

Respondents: DSGI Vishal Sharma; Advocate Palavi Sharma; AAG Ravinder Gupta

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