Full Text
HIGH COURT OF DELHI
SABIR & ORS. ..... Appellants
Through: Mr. Prakhar Sharma and Mr. Swapnil Choudhary, Advocates
Through: Mr. Manoj Pant, APP for the State with SI Parveen Kumar, P.S. Sadar Bazar.
JUDGMENT
1. The instant application has been filed by appellant no. 3 Mohd. Swaleen under Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) for grant of permission to travel to Saudi Arabia for Hajj/Umrah pilgrimage.
2. In the present case, an FIR was registered under Sections 308/323/34 of Indian Penal Code, 1860 („IPC‟) and later, Sections 302/307 IPC were also invoked against present appellant along with three other accused. The learned Trial Court after conclusion of trial, convicted the present appellant and three other accused vide judgment dated 20.05.2010, and sentenced the appellant to undergo Rigorous Imprisonment for a period of 10 years and fine of Rs. 1 lac for offence punishable under section 304(I[1])/34 IPC, and to further undergo Rigorous Imprisonment for a period of 05 years and fine of Rs. 50,000/- for offences punishable under Section 308/34 IPC vide order dated 21.05.2010. The present appeal against the conviction has been pending before this Court since 2010. This court vide order dated 01.07.2010 had admitted the appeal, and thereafter, had suspended the sentence of appellant, vide order dated 28.02.2012.
3. Learned counsel for the appellant states that the appellant is senior citizen aged about 80 years, and he wishes to perform Hajj pilgrimage, which is a religious duty of every Muslim for which the appellant wishes to apply for passport. It is stated that the appellant had filed an application previously i.e. Crl. M.A. No. 12046 of 2022 before this court, seeking similar prayer, however since appellant did not have the passport and certain details were missing about his intended travel at that time, the said application was dismissed by this Court vide order dated 28.06.2022. It is stated that the appellant had applied for passport before the relevant authorities, but in view of Section 6(2)(e) and (f) of the Passport Authority Act, 1967, he is required to obtain the permission of this Court, as informed by concerned passport authority. It is further argued that in a similar case of Ashok Kumar Sharma v. The Regional Passport Officer 256(2019) DLT 437, this court had stated that the petitioner is at liberty to make an application for passport at the expiry of a period of 5 years from the date of conviction.
4. On the other hand, learned counsel for the respondent states that the appellant has been convicted by the learned Trial Court, and the appeal against conviction is pending before this Court. It is stated that the case against the appellant is of serious nature, and since the appellant is seeking permission to go abroad i.e. Saudi Arabia, there is possibility of his escape from India.
5. The arguments addressed by both the sides have been heard and material on record has been perused.
6. In the present case, the appellant had been convicted under Section 304(II)/34 and 308/34 IPC on 20.05.2010 and sentenced under appropriate provisions of law on 31.05.2010 by the learned Trial Court. This Court had suspended the sentence of the appellant on 28.02.2012. Now, the appellant by way of instant application seeks permission to apply for issuance of passport, in order to go abroad.
7. It is the case of the appellant that he be exempted from the bar created by Section 6(2)(e) and (f) of the Passports Act, 1967, in order for the him to apply for the issuance of passport. To appreciate the contention raised on behalf of the appellant, Section 6 of the Passports Act is reproduced as under:
6. Refusal of passports, travel documents, etc.xxxx xxxx xxxx xxxx (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) xxxx xxxx (b) xxxx xxxx
(c) xxxx xxxx
(d) xxxx xxxx
(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, 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; (f) that proceedings in respect of an offence alleged to have committed by the applicant are pending before a criminal court in India;
8. A perusal of aforementioned provision reveals that the passport authority can refuse to issue passport, inter alia, on the following two grounds: (a) If the applicant has been found guilty of any morally reprehensible offense by an Indian court and sentenced to imprisonment for a period of at least two years, within the last five years prior to the date of application. (b) If there are criminal proceedings pending against the applicant in an Indian court for any offence.
9. It is to be further noted that Section 22 of the Passports Act provides Central Government with the power to grant exemption from application of provisions of Passports Act. In this regard, Section 22 of the Act reads as under:
10. The Central Government using the power conferred upon it by Section 22, passed notification bearing number G.S.R. 570(E) dated 25.08.1993, which is set out below:- “..Ministry of External Affairs Notification New Delhi, the 25th August, 1993 G.S.R. 570(E)--In exercise of the powers conferred by clause (a) of section 22 of the Passports Act, 1967 (15 of 1967) and in supersession of the notification of the Government of India in the Ministry of External Affairs No.G.S.R. 298(E) dated the 14th April 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts 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 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 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 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...” (Emphasis Supplied)
11. A perusal of this notification reveals its circumscribed ambit, which pertains exclusively to the exemption of individuals from the operation of Clause (f) of Section 6(2) of the Passports Act. The said notification lucidly elucidates its sole purpose of granting exemption to citizens who are the subject of pending criminal proceedings. As per the said notification, the Courts before whom the criminal proceedings are pending are empowered to grant permission to travel abroad, subject to certain conditions.
12. During the course of arguments, learned counsel for the appellant had argued that a period of 5 years post conviction, as mentioned under clause (e) of Section 6(2) of Passports Act had elapsed, and no permission of this Court was required for issuance of passport. Having thoughtfully examined the provisions of the Act and relevant notification, this Court is unable to agree with the contentions raised by the learned counsel for the appellant.
13. With regard to this argument, this Court notes that clause (e) and (f) of Section 6(2) of the Passport Act are exclusive of each other. It can be observed that clause (e) of Section 6(2) pertains to cases in which the applicant have completed 05 years from the date of conviction, and, on the other hand, clause (f) of Section 6(2) pertains to cases which are pending before the court for trial. This essentially reveals that clause (e) deals with situations where no appeal from conviction is pending, as in cases where an appeal would be pending, the provision of clause (f) would come into play, since it is settled law that an appeal would amount to continuance of criminal proceedings. In this regard, a reference can be made to the decision of Hon‟ble Apex Court in Akhtari Bi v. State of M.P. (2001) 4 SCC 355, wherein it has been held as under: "5....Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction..."
14. In the present case, the appellant's appeal against his conviction is pending before this Court since the year 2010. Consequently, it can be held that the case of the applicant is covered by clause (f) of Section 6(2) of the Passports Act, 1967, as the appeal of the applicant against the conviction recorded by learned Trial Court is pending before this Court. Thus, the appellant's situation falls within the purview of the aforesaid notification, conferring upon this Court, the requisite authority to exercise discretion and grant exemption.
15. As observed in preceding discussion, in view of notification bearing number G.S.R. 570(E) dated 25.08.1993 issued by the Central Government using its power under Section 22 of the Passports Act, this Court has powers to grant exemption to persons who are subject of pending criminal appeal.
16. In the present case, the applicant who is seeking permission to go abroad to Saudi Arabia, for the purpose of performing Hajj Pilgrimage, is aged about 80 years, and was sentenced to undergo imprisonment for a period of 10 years, had already undergone a period of 3 years 7 months in judicial custody, before his sentence was suspended by this Court. The applicant has been out on bail for past 11 years, and no adverse report has come on record that he has misused the liberty to granted to him.
17. In the present case, it is pertinent to note that appellant is about 80 years of age, who expresses his desire to undertake Hajj a pilgrimage, which is a sacred obligation for every Muslim to fulfill at least once in lifetime. Given the significance of Hajj in Muslim religion and the profound impact it can have on the appellant, in case, in the circumstances as of the present case, he is denied this permission, this Court deems it a duty to facilitate and enable him to fulfill this sacred obligation. This Court does not want to impede or obstruct appellant‟s aspirations of fulfilling his religious duty and spiritual journey solely because the appeal filed by him is pending before this Court for years. Instead, this Court is duty bound to balance its order to render justice, not only through the lens of law, but also through the prism of compassion, empathy and practical understanding.
18. Considering overall facts and circumstances of this case, this Court is inclined to allow the present application. The applicant is accordingly permitted to go abroad for a period of 02 months to Saudi Arabia for performing Hajj/Umrah pilgrimage on the following conditions: i. The applicant shall furnish a personal bond of Rs.25,000/- with one surety of like amount to the satisfaction of concerned Trial Court; ii. The applicant shall inform the concerned Trial Court about his itinerary of travel including the date of his departure and arrival; iii. The applicant shall not exit immigration at the transit points, if any; iv. The applicant shall also file a copy of e-tickets as well as passport containing the entry regarding his visit, immediately upon return to India before the Trial Court.
19. Thereafter, he will seek permission of learned Trial Court to go abroad, if required, till pendency of this appeal.
20. Accordingly, the application stands disposed of. CRL.A. 742/2010
21. List in due course.
22. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J JULY 12, 2023