Ashok Khanna v. Central Bureau of Investigation

Delhi High Court · 07 Nov 2019 · 2019:DHC:5827

Suresh Kumar Kait

CRL.A. 686/2018

2019:DHC:5827

administrative petition_allowed Significant

AI Summary

The Delhi High Court held that Section 6 of the Passport Act, 1967 does not bar renewal of passports for persons convicted and sentenced to imprisonment of two years or more, directing passport renewal despite the appellant's conviction.

Full Text

Crl.M.A. 4784/2019 in CRL.A. 686/2018 HIGH COURT OF DELHI
Date of Decision: 07.11.2019

CRL.A. 686/2018
ASHOK KHANNA ..... Appellant
Through Mr.Shivesh P. Singh, Adv.

VERSUS

CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through Mr.Mridul Jain, SPP for CBI.

CORAM:

HON'BLE MR. JUSTICE SURESH KUMAR KAIT

JUDGMENT

(ORAL)
Crl.M.A. 4784/2019 in Crl.A.686/2018

1. Vide the present application, the applicant/appellant seeks directions to Regional Passport Authorities, Delhi for renewal of the passport, subject to compliance of all other rules.

2. The facts of the application are that the applicant is a retired officer from Syndicate Bank, who during the normal course of his duties was part of the disbursal of the credit facilities to M/s Surhit Services Pvt. Ltd. The State Bank of India also granted credit facilities to the said Borrower. After the applicant retired from Syndicate Bank, the said credit facilities were 2019:DHC:5827 renewed by Syndicate Bank and enhanced in consortium with State Bank of India. However, later the credit facility was classified as NPA due to nonservice of the loan installments/interest. During recovery process, the Bank filed a complaint with Central Bureau of Investigation (hereinafter referred to as "CBI") as the same was mandatory. The applicant, amongst other Bank officials, were charged by the CBI after conducting a routine enquiry. The Ld. ASJ, Special Judge CBI, convicted the applicant under Section 13 (1)

(d) of the Prevention of Corruption Act, 1988 and handed down sentence of two and a half years and fine of Rs.20,000/-.

3. Learned counsel appearing on behalf of the petitioner submits that the applicant holds a valid Indian Passport bearing No. H4661781, which is due to expire on 01.06.2019. The applicant frequently travels to meet his daughter, who has been residing in USA for the last 13 years. The applicant holds a valid VISA to USA for 10 years which was obtained for visiting his daughter from time to time. The applicant planned to visit his daughter during the last week of February, 2018 and the passport was due to expire on 01.06.2019. Accordingly, the applicant approached the Regional Passport office for its renewal, as he would not be permitted to travel by USA authorities, if the passport expires within six months. For seeking renewal, the applicant, while following the procedure so laid, sought an appointment for verification of his documents on 05.02.2019, however, the applicant was advised by the official that his application will not be entertained unless specific permission is obtained from this Court.

4. It is further submitted that the applicant also visited his daughter at USA on 21.09.2018 and returned back to India on 14.10.2019. The said visit was after the conviction was awarded to the applicant by the Ld. ASJ Spl. Judge, CBI. The applicant is a permanent resident of India and has a respectable family background. He is a law abiding citizen and has no other case/proceedings, of any nature, pending before any other Court/Forum /Tribunal.

5. Learned counsel further submits that vide order dated 03.07.2018, this Court suspended the sentence in Crl.M.(Bail) 1024/2018 during the pendency of the appeal subject to his furnishing a personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the Trial Court. Thus, there is no pre-condition imposed by the court not to travel without permission of the court.

6. Learned counsel appearing on behalf of the respondent has opposed the present application by stating that as per section 6 of the Passport Act, 1967, if conviction is more than 2 years, then for renewal of the passport, a permission is required from the court concerned.

7. As per section 6 of the Passport Act, 1967, the passport authority shall refuse to make an endorsement for visiting any country under clause (b) or clause (c) of sub-section (2) of section 6 of the said Act, on any one or more of the grounds mentioned in section 6. For convenience, section 6 is reproduced as under:

“6. Refusal of passports, travel documents. etc.—

(1) Subject to the other provisions of this Act, the

passport authority shall refuse to make an endorsement

for visiting any country under clause (b) or 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 may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;

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(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 in the opinion of the Central Government the presence of the applicant in such 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;

(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 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 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 an order prohibiting the departure from India of the applicant has been made by any such court; (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.”

8. Learned counsel submits that as per sub-clause (e) of clause (2) of section 6, 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.

9. As per sub-clause (f) of clause (2) of section 6, proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India. Admittedly, the applicant has been convicted and sentenced to undergo RI for 2 ½ years with fine of ₹20,000/- and in default of payment of fine, SI for 3 months. Thus, the applicant is not entitled for renewal of his passport.

10. To strengthen his argument on the afore-stated issue, he has relied upon the case of Ashok Kumar Sharma vs. The Regional Passport Officer & Ors.: (2019) 256 DLT 437 and submits that in the aforesaid case, the request of the petitioner therein was for re-issuance of the passport and the same prayer was rejected by this court by recording as under:

“24. It is also relevant to observe that in terms of Section 6(2)(e) of the Act, a passport can be denied to a citizen if he is convicted of an offence at any time during the period of five years preceding the date of application for a passport. In the present case, the petitioner was convicted of an offence on 12.09.2014 and, thus, any application made during the period of five years from that date - that is, till 11.09.2019 - can be rejected in terms of Section 6(2)(e) of the Passports Act. The petitioner would be at liberty to make an application for a passport after the said date under the provisions of Section 6(2)(e) of the Passports Act. Needless to state that if such application is made, the same cannot be denied on the ground as stated under Section 6(2)(e) of the Passports Act.”

11. He submits that in the said case, a new passport has to be issued, therefore, in the present case also, passport will be re-issued which is not permissible as per section 6 of the Passport Act mentioned above and in view of the judgment passed by this court in Ashok Kumar Sharma (Supra).

12. He further submits that for new passport/re-issue/replacement of lost/damage passport, application for the same which is part-I of Schedule III of the Passport Rules, 1980, therefore, where there is issuance of fresh passport or renewal or replacement of lost or damaged passport, section 6 of the Act comes into play.

13. As per section 6 of the Act, the passport authority shall refuse to issue a passport or travel document and to make an endorsement for visiting any country under clause (b) or clause (c) of sub-section (2) of section 6 on any one or more of the grounds mentioned therein. In the said section, the only provision is to refusal to issue a passport or an endorsement for visiting any country. In the said provision, nowhere it is mentioned that even on renewal of the passport, the authority can refuse to renew the passport.

14. In the case of Ashok Kumar Sharma (Supra), the case before this court was for re-issuance of the passport wherein case in hand is for renewal of the passport.

15. As per Chapter I Schedule III of the Passport Rules, 1980, passport application Form-I EA(P)-2 is for miscellaneous services of Indian passport for (use in India) (A) Renewal (B) Additional Visa Sheet, (C) Additional Booklet, (D) Change of Address, (E) PCC, (F) Additional Endorsement, (G) Chief Inclusion/deletion) (H) Any other service (specify), therefore, the case of the petitioner does not come under Form EA(P)-1 for new/re-issue/replacement of lost/damaged passport.

16. The case of the petitioner is for renewal of the passport. Neither he is asking for a new passport nor seeking re-issue or replacement of lost or damaged passport, therefore, the said applicant is not applicable in the case of the petitioner.

17. However, the case of the petitioner falls under application Form EA(P)-2 and according to this application, I note in Form EA(P)-1, passport application form (1) serial no.17 (a), (b) & (c) are as under: “17(a) Have you at any time during the period of five years immediately preceding the date of this application been convicted by a court in India for any criminal offence and sentenced to imprisonment for two years or more? If so, give name of the court, case number and relevant sections of Law. (Attach copy of judgment)................................................................................ (b) Are any criminal proceedings pending against you before a court in India? If so, give name of court, case number and relevant sections of Law...............................................................................

Objection Certificate from competent court for grant of Passport....................................................................................

(d) Have you been ever refused/denied passport? If yes, give details:...................................................................................... (e) Has your passport ever been impounded/revoked? If yes, give details:.............................................................................. (f) Have you ever applied/granted political asylum by any foreign country? If yes, give details:.............................................................................”

18. Whereas in Form EA(P)-2, serial number 5 is application which is reproduced as under:

“5. Are any criminal proceedings pending against applicant in criminal court in India or any other disqualifications under section 10(3).”

19. Thus, in EA(P)-2, there is no such condition to take certificate from the court. Thus, the respondent has misread the provisions and contents of the two applications mentioned above.

20. Moreover, Rule 5 is applicable for renewal of passport which is as under:

“5. Form of applications.-[(1)] An application for the

issue of a passport or travel document or for the renewal

thereof or for any miscellaneous service shall be made in

the appropriate Form set out therefore in Part I of

Schedule III and in accordance with the procedure and

instructions set out in such form:

[Provided that every application for any of the aforesaid

purposes shall be made only in the form printed and

supplied by-

(a) the Central Government; or

(b) Any other person whom the Central Government may notification to the condition that such complies that Government behalf: Provided further that] in the course of any inquiry under sub-section (2) of section 5, a passport authority may require an applicant to furnish such additional information, documents or certificates, as may be considered necessary by such authority for the proper disposal of the application. 4[(2) The price of the new application forms referred to in sub-rule (1) shall be as specified in column 3 or 4, as

the case may be, of Schedule III A for that particular category: [***] [(3) The Passport Authority may authorise any person or authority to collect passport applications on its behalf for issue of a passport or travel document or for the renewal thereof or for any miscellaneous service on payment of a service charge specified by the Central Government under sub-rule (2) of rule 8 in addition to the fee payable under sub-rule (1) of rule 8 and the service charge shall be paid by the applicant to such person or authority.] [***]”

21. In view of above provisions, there is a separate provision for renewal of the passport, therefore, section 6 is not applicable in the present case.

22. Though Passport Authority is not made party in the present appeal, I exercise powers under Article 226 of the Constitution of India, accordingly, the said authority is directed to renew the passport of the petitioner within 15 days from the receipt of this order.

23. Copy of this order be also sent to the Regional Passport Office, Delhi for compliance.

24. Chief Passport Officer, Delhi who shall transmit this order to all the Regional Passport Offices throughout India for compliance in pending and future cases.

25. The application is disposed of accordingly.

JUDGE NOVEMBER 07, 2019 ab

Ashok Khanna v. Central Bureau of Investigation

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