Case Study
Note on “PERSON having Criminal Records and opting for a passport after completion of sentence.”
CAN SOMEONE WITH A CRIMINAL RECORD GET A PASSPORT?
Some people who have a criminal record might be able to get a passport. Drug convictions can make it challenging to get a passport. A person who has a conviction for international drug trafficking is automatically excluded from getting a passport.WHEN CAN I GET A PASSPORT IF I WAS CONVICT OF A CRIME?
You can apply for a passport once you have completed any jail, prison, halfway house, and probation or parole sentence. If a court issued an order for you to avoid international travel, that order must be lifted before you can obtain a passport, even if you meet the other requirements.CAN I TRAVEL ANYWHERE IF I HAVE CRIMINAL CONVICTIONS AND A PASSPORT?
No, you can’t travel anywhere you want. Some countries have entry laws that forbid people with criminal convictions from entering the country. Other countries have specific rules for people with criminal convictions. Belgium won’t allow people who have criminal convictions to enter the country unless they have a country ticket and funds for the trip.
The lists of complex cases are as follows:
- All convicted cases (by a court in India or abroad).
- Any applicant is having a criminal case pending before a criminal court in India.
- A warrant or summons for the appearance, or a warrant for the arrest, of the applicant, has been issued by a court under any law for the time being in force or that any such court has made an order prohibiting the departure from India of the applicant.
- An applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation.
Citations:
1.In the case of “The Chhattisgarh High Court, in one of its recent judgment, has held that for
Renewal of passport, the pendency of criminal case is not a bar if a person seeking renewal obtains permission from the concerned criminal Court for travel abroad.
The judgment came out in
“Abhishek Tiwari v/s Union of India, Regional Passport Office, State of Chhattisgarh.”
CASE BACKGROUND
The petitioner herein had applied for renewing his passport with the concerned Passport Authorities after it expired.
He was suffering trial for an offense punishable under Sections 294, 323, 451, and 506 read with Section 34 of the IPC and therefore, to acquire the renewal applied Section 6(2)(f) of 2 the Passports Act, 1967 before the trial Magistrate where his criminal trial was pending, for necessary orders directing renewal of passport.
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The Court rejected the application by the impugned order holding that the order seeking explanation is appealable, and he then filed the present writ petition.
The Learned Counsel of the petitioner submitted that the Court is unjustified in rejecting the application and ignorant of the notification dated 25 August 1993, issued by the Central Government in the exercise of its power under Section 22 of the Passports Act, 1967 (Power to Exempt) by which subject to no objection from the criminal Court, a passport can be renewed pending trial of a criminal case.
He demanded that the impugned order deserves to be set aside, and the matter is remitted to the jurisdictional criminal Court for considering the case of the petitioner for permitting him to depart from India.
COURT ANALYSIS
The Court at very first cited Maneka Gandhi v. Union of India in which the Supreme Court held that right to travel abroad is a part of personal liberty under Article 21 of the Constitution of India, and the right to travel abroad on the aspect of personal liberty cannot be curtailed without reasonable opportunity to show cause. It was further held that Article 21 of the Constitution’s procedure could not be arbitrary, unfair, and unreasonable. Hence, rules of natural justice must be followed before impounding a passport under Section 10(3)(c) of the Passports Act, 1967.
The Court stated that on account of pendency of the criminal case, the passport authority is empowered to refuse to issue passport or travel documents for visiting any foreign country under clause (c) of sub-section (2) of Section 5 of the Passports Act, 1967.
The Court then highlighted Section 22 of the Passports Act, 1967 that renders the Central Govt with special powers that could exempt any person or class of persons from the operation of all or any of the provisions of this Act.
What is Section 22 of the Passports Act, 1967?
“22. Power to exempt.—Where the Central Government thinks that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette and subject to such conditions, if any, as it may specify in the notification,— (a) exempt any person or class of persons from the operation of all or any of the provisions of this Act or the rules made thereunder; and (b) as often as may be, cancel any such notification and again subject, by a like notification, the person or class of persons to the operation of such provisions.”
In exercise of the powers conferred by clause (a) of Section 22 of the Passports Act, 1967 and in super-session of the notification dated 14 April 1976, the Central Government has issued a notification dated 25 August 1993, exempting citizens of India against whom proceedings in respect of an offense alleged to have been committed by them are pending before a criminal court in India and who produce orders from the Court concerned permitting them to depart from India, five from the operation of the provisions of clause (f) of sub-section (2) of Section 6 of the Passports Act, 1967.
The Court stated that the said notification reveals that that application for renewal of passport is not liable to be refused on the ground of pendency of criminal case if the particular person obtains permission from the concerned criminal Court and cited Deepak Dwarkasingh Chhabria Vs. Union of India and another in which it was held that for renewal of passport, the pendency of criminal case is not a bar if a person seeking renewal obtains permission from the concerned criminal Court for travel abroad.
The Court was thus of the opinion that in line with the notification mentioned above, the trial Magistrate was required to consider the petitioner’s application for permitting him to depart from India.
The Court so set aside the impugned order and directed the trial court to deal with the application afresh within two weeks from the date of receipt of a copy of the order.
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In the interest of the common, the Court also directed the passport authorities that in case of pendency of the criminal case, in which renewal of passport is sought, it will inform the person concerned the Right to Apply for necessary permission from the Court concerned to travel abroad, as the present notification dated 25 August 1993, was issued by the Central Government to avoid unnecessary delay in renewal of passport, without fail.
Justice Sanjay K. Agrawal has passed the order on 06-11-2019.
Read Order Here:
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Allahabad High Court Ravindra Nath Bhargav Vs. the State Of UP on 9 January 2019
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR.
Court No. – 70
Case: – APPLICATION U/S 482 No. – 33332 of 2017
Applicant: – Ravindra Nath Bhargav
Opposite Party: – State Of UP.
Counsel for Applicant: – Harsh Vardhan Gupta, Alok Ranjan Mishra, Vikas Mathur
Counsel for Opposite Party: – GA.
Hon’ble Sanjay Kumar Singh, J.
1. Heard Sri G.S. Chaturvedi, Senior Advocate, assisted by Sri Alok Ranjan Mishra, learned counsel for the applicant and learned AGA for the state.
2. This application under Section 482, the applicant has filed Cr.P.C. with a prayer to quash the order dated 22.07.2017, passed by Additional Chief Metropolitan Magistrate, Court No. 3, Kanpur Nagar, in Criminal Case No. 31879 of 2016 (State vs. Ravindra Bhargav), under Sections 323, 354B, 504, 506 IPC, Police Station Pheelkhana, District Kanpur Nagar, whereby learned Additional Chief Metropolitan Magistrate, Court No. 3, Kanpur Nagar has rejected the application dated 03.07.2017 of the applicant for obtaining no objection certificate/permission regarding issuance of passport to the applicant on the ground that in a criminal case pending against the applicant charge has not yet been framed. During the pendency of the criminal case, there is no justification for granting permission to renew the passport of the applicant.
3. It is submitted by learned counsel for the applicant that passport bearing no. G2815097 was issued to the applicant by Regional Passport Office, Lucknow, on 07.05.2007. The validity of the said passport was up to 06.05.2017. The applicant online applied for renewal of his passport mentioned above on 17.03.2017. Still, on account of the pendency of criminal case under Sections 323, 354B, 504, and 506 IPC according to FIR dated 14.11.2015 against him, his renewal application was put on hold Passport Seva Kendra, Kanpur, as per acknowledgment letter dated 17.03.2017. It is contended that the applicant has again submitted a reissue application bearing no. LK2070837505217 dated 17.03.2017 before Regional Passport Office, Lucknow, Ministry of External Affairs, and Government of India. On seeking the status of the above application dated 17.03.2017 by the applicant, Regional Passport Office, Lucknow by letter dated 03.07.2017 given reply to the applicant observing the following discrepancies:-
“1. As per your submitted passport application from a court case pending against you.
2. Please obtain order/no objection from the concerned Court.”
“Further request was made to the applicant “to produce proper certificate/explanation for the same without which the requested service cannot be provided to the applicant.”
4. Given above, the applicant filed an application dated 03.07.2017, in Criminal Case No. 31879 of 2016 before the Court of Additional Chief Metropolitan Magistrate, Court No. 3, Kanpur Nagar, for obtaining no objection regarding renewal/re-issuance of passport. The Additional Chief Metropolitan Magistrate has rejected the said application of the applicant, Court No. 3, Kanpur Nagar vide order dated 22.07.2017 on the ground that a case under Sections 323, 354B, 504, and 506 IPC has been registered against the applicant, in which charge sheet has been filed against the applicant. Still, the charge has not yet been framed against the applicant; therefore, there is no justification for granting permission for renewal of the passport to the applicant during the pendency of a criminal case.
Submissions on behalf of the applicant
5. Assailing the impugned order dated 22.07.2017 of the Court below, learned counsel for the applicant at very outset had placed reliance on the order dated 02.09.2016, passed by co-ordinate Bench of this Court, in Criminal Revision No. 916 of 1988, which is reproduced herein below:-
“Order on Application No. 223300 of 2016 Heard Shri GS Chaturvedi, learned Senior Advocate assisted by Shri Samit Gopal, learned counsel for the revisionist and Shri P.K. Srivastava, learned AGA for the state.
The applicant-revisionist has filed this application with the prayer to permit the applicant to travel to the USA from 15.3.2017 to 30.9.2017 and then again from 1.5.2018 to 31.12.2018 and further give appropriate directions for the renewal /reissue of the passport No.-L 9152792 issued on 2.6.2014 from Ghaziabad.
Learned counsel for the applicant- revisionist submits that he does not want to press the prayer for permission to travel from the USA from 1.5.2018 to 31.12.2018 at this stage.
Learned counsel for the applicant- revisionist submits that before this application, the applicant had moved an application for permission to go to the USA to meet his son, and approval was granted to him by the trial court as well this Court. It is further submitted that permission has been given to the applicant vide order dated 7.4.2014 by this Court to travel to the USA from 15.5.2014 to 31.12.2014 without demanding any bond /sureties.
Having considered the facts and circumstances of the case, I do not find any reasons to deny the liberty of the applicant-revisionist to go abroad and meet his family. The applicant- revisionist S.P. Mathur is permitted to go to the USA from 15.3.2017 to 30.9.2017.
It is open for the applicant-revisionist to take appropriate steps to renew his passport before the authority concerned under law.
Accordingly, the application is allowed.”
6. Learned counsel for the applicant has also placed reliance upon the notification dated 25.08.1993 of Ministry of External Affairs, Government of India, which is reproduced herein below:-
“Ministry of External Affairs, Note. No. GSR 570(E), dated 25 August 1993, was published in India, Extra., Part II, Section 3(i), dated 25 August 1993, pp. 2-3, Sl. No. 289 [No. VI/401/37/79] in exercise of the powers conferred by clause (a) of Section 22 of the Passports Act, 1967 (15 of 1967) and in the suppression of the notification of the Government of India in the Ministry of External Affairs No. GSR 298(E), dated 14 April 1976, the Central Government, thinking that public interest must do so, at this moment exempts citizens of India against whom proceedings in respect of an offense alleged to have been committed by them are pending before a criminal court in India and who produce 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 said 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 the order of the Court referred to above, if the Court specified a period for which the passport has to be issued; or
(ii) if no period either for the issue of the passport r for the travel abroad is specified in such order, the passport shall be issued for one year;
(iii) if such an order gives permission to travel abroad for less than one year but does not specify the period of 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 canceled or modified.
(c) any passport issued in terms of (a) (i) above can be further renewed only on the basis f 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.”
7. On the strength of notification described above dated 25.08.1993, much emphasis has been given by the learned Senior Counsel by contending that given the notice mentioned above dated 25.08.1993 issued by the Central Government, it is clear that the citizens against whom criminal cases are pending are made exempt from the operation of S.6(2)(f) provided they produce orders from the concerned Court permitting them to travel abroad subject to the terms and conditions mentioned in the notifications. In other words, a passport application is not liable to be refused on the ground of pendency of the criminal case. If the applicant obtains permission from the concerned Criminal Court for traveling outside India and there is no statutory bar for the trial court to give no objection.
8. the learned Senior Counsel further submits on behalf of the applicant that the applicant is a senior citizen of 68 years, a Glass technologist, a Social Activist, and former Principal Director of the Centre for the Development of Glass Industry, Firozabad. He is an international Glass Expert and Advisor. The applicant has been wrongly and falsely implicated in a criminal case bearing no. 209/15, under Sections 323, 354B, 504, and 506 of the Indian Penal Code.
9. In the above pending criminal case, the allegation against the applicant is that he assaulted the complainant by fist, causing injury in his teeth. The applicant is already on bail. It is submitted that, though the criminal case pending against him is petty, nowadays such criminal cases also take a long time to decide finally. Till then, it will not be proper to refuse the renewal/reissue of the passport to the applicant. He further submitted that in case of the applicant is acquitted in the future. Loss, which the applicant may suffer by not going abroad for his professional work and visiting his children and grandchildren, who are residing in the United States, as mentioned in para 16 of the application, cannot be compensated in any manner. The renewal of passport is an inherent fundamental right of the applicant being a citizen of India as guaranteed under Article 21 of the Constitution of India; therefore, impugned order dated 22.07.2017 is liable to be quashed.
10. Learned counsel for the applicant also undertakes before this Court that he is ready to give an undertaking before the trial court within three weeks from the date of passing of this order that he will not leave India without prior permission of the trial court. He shall also appear on each date before the trial court in a criminal case pending against him.
Submissions on behalf of the State
11. By order dated 06.10.2017, three weeks have been granted to learn Additional Government Advocate for the state to file a counter-affidavit, but to date, no counter affidavit has been filed by the state. Learned AGA has placed reliance on Section 6(2)(f) of the Passport Act and submitted that given said provision, learned Magistrate has rightly and legally passed the impugned order dated 22.07.2017. The application of the applicant is liable to be dismissed.
Discussion
12. After having heard the argument of Sri. GS Chaturvedi learned Senior Counsel appeared on behalf of the applicant and learned Additional Government Advocate at great length; it will be helpful to state briefly the legislative background of the Act before considering the relevant provisions of Section 6(2)(f). The Passport Act, 1967 was enacted on 24 June 1967, given the Supreme Court’s decision in Satwant Singh Sawhney v. VD. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi, AIR 1967 SC 1836. Before coming into force of The Passport Act, 1967 (Act No. 15 of 1967), there was no law in India regulating the passport for leaving India and going abroad. The point of a passport was entirely within the discretion of the executive, and this discretion was unguided and unchallenged. In Satwant Singh Sawhney’s case (supra), the Supreme Court by a majority held that the expression ‘personal liberty’ in Article 21 of the Constitution includes the right to travel abroad. Under Article 21, no person can be deprived of his right to go overseas except according to the procedure established by law since no law had been made by the state regulating or prohibiting the exercise of that right. The refusal to issue a passport violated Article 21 of the Constitution. The Supreme Court held that the discretion with the execution in refusing or issuing a passport being unchanneled and arbitrary was violative of Article 14 of the Constitution. Hence, the order denying passport to the petitioner was also invalid under that Article. The Parliament accepted this decision, and the infirmity pointed out by it was set right by the enactment of the Passport Act. Section 6(2) of the said Act lays down nine separate grounds on which the passport authority can refuse to issue, among other things, a passport. Under Section 8, the same grounds apply to a case for renewal of passport. Therefore, under the said Section 6(2) read with Section 8 of the said Act, it is made obligatory for the passport authority to refuse to renew the passport if one out of nine grounds mentioned in Section 6(2) is present.
13. The Supreme Court also considered the constitutional validity of some of the provisions of the Passport Act in the landmark case of Maneka Gandhi Vs. Union of India, AIR 1978 SC 597 and held that the procedure contemplated by Article 21 must answer the test of reasonableness to conform with Article 14. Such a process must be right and just and fair and not arbitrary, fanciful, or oppressive. Otherwise, it will be no procedure at all, and the requirement of Article 21 would not be satisfied. The decision of the Supreme Court in Maneka Gandhi was delivered on 25 January 1978. After the Supreme Court judgment of Maneka Gandhi’s case, the Central Government in the exercise of the powers conferred by clause (a) of Section 22 of the said Act, issued a notification dated 16 August 1979, exempting citizens of India against whom proceedings in respect of an offense alleged to have been committed by them are pending before any criminal Court in India and who produce orders from the Court concerned permitting them to depart from India, from the operation of the provisions of the clause (f) of sub-section (2) of Section 6 of the Act.
By the notification dated 25 August 1993, the earlier notification was substituted. Here the reference is required to be made to Sections 5 and 6 of the Passport Act, which is quoted herein below:-
“Section 5: Applications for passports, travel documents, etc., and orders thereon:
(1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority. It shall be accompanied by (Such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination, and other connected miscellaneous services in issuing passports and other travel documents).
Explanation: – In this section, “named foreign country” means such a foreign country as the Central Government may, by rules made under this Act, specify on this behalf.
(1A) An application for the issue of:-
(i) A passport under this Act for visiting a named foreign country; or
(ii) a travel document under this Act for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section, may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed.
(1B) Every application under this section shall be in such form and contain such particulars as may be prescribed.] (2) On receipt of an application [under this section], the passport authority, after making such inquiry, if any. as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,-
(a) issue the passport or travel documents with endorsement, or, as the case may be, make on the passport or travel document the approval, in respect of the foreign country or countries specified in the application; or
(b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the approval, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or
(c) Refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement.
(3) Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case, the passport authority thinks 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 copy.
Section 6: Refusal of passports travels documents, etc.
(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of Section 5 on any one or more of the following grounds, and no other ground, namely: –
(a) That the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India:
(b) That the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;
(c) That the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country,
(d) That is the opinion of the Central Government. The applicant’s presence in such a country is not in the public interest.
(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of Section 5 on any one or more of the following grounds, and on no other ground, namely: –
(a) That the applicant is not a citizen of India.
(b) That the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India.
(c) That the departure of the applicant from India may, or is likely to, be detrimental to the security of India;
(d) That the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;
(e) that the applicant has, at any time during five years immediately preceding the date of his application, been convicted by a court in India for any offense involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(f) those proceedings in respect of an offense alleged to have been committed by the applicant are pending before a criminal court in India;
(g) That a warrant or summons for the appearance, or a warrant for the arrest, of the applicant, has been issued by a court under any law for the time being in force or that any such court has made an order prohibiting the departure from India of the applicant;
(h) That the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;
(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.”
14. The object behind incorporating clause (f) as one of the grounds for refusal of the issuance of passport appears to be that permitting a person facing criminal charges to go abroad is against the interest of the country and society at large. The restriction under Section 6(2) (f) of the Passport Act is not absolute, but the same can be relaxed inappropriate case with the permission of the Court in which the criminal proceedings are pending. Considering all aspects of the matter, the provisions of Section 6(2) (f) of the Passport Act, 1967, are neither violative of the equality clause nor equal protection clause enshrined in Article 14 of India’s Constitution.
15. A careful reading of provisions described above of the Passport Act and notification dated 25.08.1993 in the light of its legislative backgrounds as mentioned above, it is clear that the passport or travel document of a person who is facing trial can be refused by the authority concerned during the pendency of his criminal case. Still, there is no statutory bar for giving no objection by the Court discussed. No hard and fast straight jacket formula can be laid down regarding issuance of permission or giving no objection by the Court concerned. It is always the discretion of the Court concerned and depends upon the facts and circumstances of each case, Act and conduct of the accused, the nature of the alleged offense committed by him, and stage of a trial, etc. Some time on account of enmity or ill will, one party enmesh the other party in a frivolous criminal case to settle his score; therefore, in the interest of justice, it is necessary to consider all aspects of the matter and to surround circumstances while granting or refusing the no objection for renewal or reissue of passport or travel documents by the Court concerned.
Conclusion
16. In the present case in hand, allegations and charges leveled against the applicant by the complainant cannot be grave or heinous. The criminal case against him is also not related to public importance at large. Therefore, the applicant is already on bail; consider the facts of this case and the nature of the allegation against the applicant. I feel that the applicant has made out a case for allowing this application.
17. Given the applicant’s undertaking above before this Court and considering the nature of offense against the applicant and surrounding facts and circumstances of the case, the impugned order dated 22.07.2017, passed by the learned Additional Chief Metropolitan Magistrate, Kanpur Nagar, is Quashed.
Directions
18. The application is disposed of with the following directions:-
(i) Applicant shall submit his undertakings along with his affidavit within three weeks from the date of this order before the trial court. Concerned, mentioning that he will not leave India during the pendency of his trial without prior permission of the trial court, and he shall appear on each date in the trial before the trial court.
(ii) In undertaking the above, the applicant is filed by the applicant as directed above. The trial court on demand by the applicant shall issue a certified copy of the applicant’s undertaking within a week to him.
(iii) The applicant shall move a fresh application along with a certified copy of this order and his undertaking above before the Passport Officer/authority concerned for renewal or reissue of his passport, as the case may be.
(iv) In case such application moved by the applicant, the Passport Officer/authority concerned considering the case of the applicant afresh in the light of the observation made by this Court in this order and the contents of the undertaking of the applicant, shall decide the application of the applicant under the law within three weeks from the date of moving application by the applicant before him.
Order Date: – 9.1.2019 Sailesh
Summary: Therefore, from the above note, it is well evident that you are at liberty to renew your passport after completion of your sentence, by citing the case of Menaka Gandhi vs. UOI where your right of article 21 is at your recuse, it is your right as a citizen of the country. Further, your counsel is supposed to apply to the Hon’ble High Court to renew your passport every two years, and your presences are necessary, whereas, unlike others, the renewal of your passport will be done once in 10 years.
Research Done By,
Advocate. Anna Febronia Raymond. BBA., LLB