Rajasthan High Court – Jodhpur
Khushwiner Singh vs State Of Rajasthan (2025:Rj-Jd:13241) on 6 March, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:13241]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 743/2025
Khushwiner Singh S/o Shri Jagroop Singh, Aged About 39 Years,
R/o Flat No. E-1303, Jalvayu Tower, New Sunny Enclave, Kharar
Mohali, P.s. Kharar Sadar, Dist. Mohali (Punjab)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. The SHO, PS Mahila Thana, Dist. Hanumangarh.
3. The Superintendent Of Police, Hanumangarh.
----Respondents
For Petitioner(s) : Mr. Jaipal Singh
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
06/03/2025
1. The instant Criminal Misc. Petition under Section 482 Cr.P.C
(Section 528 BNSS, 2023) has been filed by the petitioner being
aggrieved from the order dated 12.12.2024 passed by learned
Judicial Magistrate, Hanumangarh in Criminal Misc. Case
No.12/2024 whereby the learned Court has rejected the
application filed by the petitioner seeking permission to go abroad
and for quashing of the lookout circular issued against him.
2. Brief facts of the case are that on 13.04.2023, FIR No.
108/2023 was registered at Police Station Mahila Thana against
the petitioner for the offences under Sections 498-A, 406, 354 and
377 of the IPC. The investigation in the case is underway. The
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petitioner wants to travel abroad for earning his livelihood as he is
working in a multinational company and under such
circumstances, he filed an application before the court below
seeking permission to go abroad and also prayed that the lookout
circular issued against him may be quashed. The learned
Magistrate vide order dated 12.12.2024 rejected the said
application. Hence, this Criminal Misc. Petition.
3. This Court has dealt with the similar issue in the case of
Balkaran Singh v. State of Rajasthan [S.B. Criminal
Misc(Pet.) No. 7824/2022] dated 21.11.2022. The relevant
paragraphs of the order are being reproduced herein below:-
“It is significant to note here that the Passports Act, 1967
does not confer absolute power upon a citizen to obtain
passport. Section 6(1) & (2) of the Act prescribe certain
conditions/eventualities when the passport authority is
required to turn down request to make an endorsement or
issue passport which includes a condition when an applicant
is an accused in a criminal case. Relevant extract of section
6(2) is reproduced hereinbelow:-
“(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 the
period of five years immediately preceding the
date of his application, been convicted by a court(Downloaded on 10/03/2025 at 09:39:04 PM)
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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.”
To diminish the rigour of sub-section (2)(f) of section
6, the Central Government has issued a notification dated
28.06.1993 which enables the passport authority to issue
passport even in the case of a person covered by clause (f)
of sub-section (2) of section 6 of the Act. The notification
dated 28.06.1993 is reproduced as under in its entirety:-
“GSR 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. GSR 298(E) dated the 14″ April 1976, the Central
Government, being of the opinion that it is necessary
ni 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 of 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(Downloaded on 10/03/2025 at 09:39:04 PM)
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(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
travelled abroad for the
period sanctioned by the court; and provided further
that, in the meantime, the order of the court is not
cancelled or modified;
(c) any passport issued in terms of (a)(i) above can be
further renewed only on the basis of afresh court order
specifying a further period of validity of the passport or
specifying a period for travel abroad;
(d) the said citizen shall given 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.”
The aforementioned notification provides that upon
production of an order from the Court, an application for
grant of passport shall be considered. In case the order of
the Court does not disclose the period for which the
passport is to be issued, then, the passport authority will
issue the passport for a period of one year only or as the
case may be.
An accused desirous of seeking permission or order of
getting exemption from rigour of clause (f) of section 6(2)
of the Act in terms of the notification dated 28.06.1993 may
or may not specify the period of stay and place of visit, but
in an appropriate case, Court can still consider his request
and pass an order in this regard. Court’s duty in dealing
with such ‘application’ is to see the nature of offence and
the necessity of travel. An order in terms of the notification
dated 28.06.1993 cannot be passed as a matter of
course/or in routine.
Notification dated 28.06.1993 requires the Court to
grant permission to travel abroad and on the basis of such
order, the passport is required to be issued. If such order
does not specify the period of travel, passport can be issued
for 1 year. Petitioner has stated in his application that his
children reside in Australia and Canad and he is supposed to
visit them for social gatherings and family get togethers.
True it is that he has not given specific date or period of
travel but the trial Court should have passed order of
issuing passport. Passing of an order in terms of the
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Notification dated 28.06.1993 is slightly different than grant
of permission to travel abroad.
In considered opinion of this Court the trial Court has
therefore, erred in rejecting petitioner’s application for
issuing passport, which was in essence an application for
order in terms of notification dated 28.06.1993. The order
of the trial Court is thus, liable to be set aside and thus this
Court persuaded to quash the same.
It is noteworthy that the petitioner is of 72 years old
man and the pendency of a criminal case is not an
impediment for the court for issuance of passport in these
circumstances, the passport authority should not refuse to
issue passport to the petitioner in the face of sub-section
(e) of section 6 of the Passports Act. Clause (e) provides for
refusal of passport where a person has been sentenced with
imprisonment for a period not below two years within the
five years preceding his application for passport under
section 5 of the Passports Act. The petitioner has not been
sentenced, hence he has not acquired any disqualification.
In light of the discussion made hereinabove, the
instant petition is disposed of with a liberty to the petitioner
to make an application afresh before the competent
authority, following the procedure prescribed under section
5 of the Passports Act. If the petitioner prefers such an
application, the passport authority shall consider the same
in light of the relevant provisions of Passports Act as well as
of the instant order without being influenced by the order
passed by the trial Court on 13.07.2022.
The present petition is disposed of accordingly. The
stay application also stands disposed of.”
4. The similar issue has been elaborately discussed by the
Coordinate bench, Jaipur in the case of Neeraj Saxena v.
Rajasthan Electronics and Instruments Ltd. [S.B. Civil
Writ Petition No. 16380/2024] dated 23.10.2024 For
ready reference, the relevant paragraphs of the order are
being reproduced herein below:-
10. Hon’ble Apex Court in the case of Smt. Maneka
Gandhi Vs. Union of India, reported in AIR 1978 SC
597, has held that the expression “personal liberty”
under Article 21 of the Constitution of India has a
wider amplitude which includes right to go abroad. A
person cannot be deprived to this right except in
accordance with the procedure prescribed by the law.
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11. Similarly in the case of Satish Chandra Verma
(supra), the Hon’ble Supreme Court has held as
under:-
“The right to travel abroad is an important basic
human right for it nourishes independent and
self-determining creative character of the
individual, not only by extending his freedoms
of action, but also by extending the scope of his
experience. The right also extends to private
life; marriage; family and friendship are
humanities which can be rarely affected through
refusal of freedom to go abroad and clearly
show that this freedom is a genuine human
right.”
13. Even the Supreme Court of the United States in the
case of Kent v. Dulles, reported in 357 US 116 1958,
decided on 16.06.1958, has held as under:-
“(i) Freedom to go abroad has much social value
and represents the basic human right of great
significance.
(ii) Right to travel is a part of “liberty” of which
a citizen cannot be deprived without due
process of law.”
5. The Coordinate Bench of this Court has discussed the
issue in the case of Abhayjeet Singh Vs. State of
Rajasthan (S.B. Criminal Misc.Petition No.5870/2024)
decided on 02.09.2024. The order above reads as under:-
“8. First and foremost, for ready reference
relevant extract of Rule 12 of the Passport
Rules, 1980, is as below:
“12. Duration of passports or travel
documents. –
(1) An ordinary passport for persons
other than children below the age of 15
years, containing thirty-six pages or
sixty pages shall be in force for a period
of 10 years from the date of its issue….”
9. A plain reading of the aforementioned
rule clearly establishes that a citizen is entitled
to be issued a passport with a minimum
validity of 10 years.
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10. Trite law it is that right to travel is
intrinsically contained in the right to earn a
livelihood. Courts have consistently upheld this
as a fundamental right, subject of course to
reasonable restrictions. The petitioner, who is
primarily a farmer cultivating ‘Kinnu’ in his
orchards, exports some of his produce to
Saudi Arabia and has established business
relations there. He seeks to travel abroad to
further these business interests.
11. It is also acknowledged position that a
short-term passport validity poses practical
difficulties in obtaining visas from certain
countries. Whether the passport is valid for
one year or ten years does not materially
affect the allegations against the petitioner
regarding potential absconding. Thus the
renewal of his passport for the full 10-year
duration would not in any case prejudice the
respondent or the complainant.
12. Moreover, the petitioner has not been
convicted of any offense; he is merely facing
charges. Under the law, he is presumed
innocent until proven guilty. The restrictions
imposed on his passport validity appear to
pre-emptively punish the petitioner,
undermining the principle of presumption of
innocence enshrined in Article 21 of the
Constitution of India. Denying a 10-year
passport validity without cogent reasons
amounts to an arbitrary restriction on this
right and does not align with the principles of
justice, equity, and fairness.
13. There is no substantive evidence or
reasonable apprehension expressed or
presented before this Court that the petitioner
poses a flight risk or that he intends to
abscond from the legal proceedings. His
established business ties in India, particularly
in agriculture, further negate the possibility of
him absconding. Not only that, it transpires
that he has his parents also residing in India
with him who are his dependents.
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14. As an agriculturist involved in the export
of ‘Kinnu’ produce to Saudi Arabia, the
petitioner’s ability to travel internationally, be
it Saudi Arabia or any other country, is directly
linked to his livelihood and economic stability.
There is no gainsaying that restriction of a
one-year passport validity places an undue
burden on his business operations, affecting
not only his income but also the livelihoods of
those employed under him.
15. The Passport Act, 1967, and the Rules
framed thereunder do not provide for arbitrary
reduction in the validity period of a passport
for individuals not convicted of any offense.
The issuance of a one-year passport, in this
case, appears to lack any statutory backing
and thus, contravenes the provisions of the
Passport Rules.
16. Requiring the petitioner to frequently
renew his passport every year not only places
an undue burden on him but also on judicial
and administrative resources, leading to
unnecessary litigation and wastage of public
funds and time.
17. As regards the pending proceedings against
the petitioner, the issuance of a 10-year passport
will not impede the ongoing criminal proceedings
in any way. The petitioner has demonstrated his
commitment to attend court hearings and comply
with all court directives. Proper conditions can be
imposed to ensure his appearance, such as
requiring prior court permission for international
travel.”
6. In the case at hand, the investigation is still underway. The
petitioner has been granted interim protection from arrest by this
court vide order dated 05.07.2024 passed in S.B. Criminal Misc.
Petition No.4026/2024. The case is related to matrimonial
dispute. The investigation can still take some time to complete
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and thereafter the trial shall also take considerable time which
may stretch upto years. At this stage, when even the
investigating agency has not come to any conclusion regarding
guilt of the petitioner, it would be absolutely unjustified to deny
permission to petitioner to go abroad to earn his livelihood
moreso when he has shown willingness to appear before the trial
court if any charge-sheet is filed and the matter is proceeded
further.
7. In this view of the matter and taking into account the orders
referred above, the Criminal Misc. Petition is allowed. The order
dated 12.12.2024 passed by learned Judicial Magistrate,
Hanumangarh in Criminal Misc. Case No.12/2024 arising out of
FIR No.108/2023 of Police Station Mahila Thana, District
Hanumangarh is hereby quashed and set aside. The lookout
circular issued against the petitioner in connection with the above
FIR is quashed and set aside. The petitioner is permitted to go to
abroad to earn his livelihood for a limited period of one year after
his immigration check out. The pendency of criminal case arising
out of FIR No.108/2023 of Police Station Mahila Thana, District
Hanumangarh shall not be taken as an impediment against him
for issuance of passport and obtaining a visa to visit abroad
provided he furnishes a personal bond in the sum of Rs.10 lacs as
well as a surety bond in the like amount which shall be furnished
by either of his parents or near relative. He shall also furnish an
undertaking to the effect that if any of the condition is
contravened, his surety bond so furnished shall be forfeited and
amenable to recovery. It is further made clear that his foreign
visit shall not exceed more than one year from his immigration.
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He shall be at liberty to file application for extension of the above
period, which shall be considered in accordance with the
circumstances prevailing at that time.
8. The stay petition also stands disposed of.
(FARJAND ALI),J
282-Pramod/-
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