Orissa High Court
Ashok Kumar Sipani vs Union Of India And Another …. Opp. … on 23 December, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No. 30881 of 2022
An application under Articles 226 and 227 of the Constitution of
India.
---------------
Ashok Kumar Sipani .... Petitioner
-Versus-
Union of India and another .... Opp. Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : M/s. S. Das, A.K. Mohanty
S.P. Tripathy, V.R. Behera, A.
Mishra & I. Swain, Advocates
For Opp. Parties : Mr. P.K. Parhi
Deputy Solicitor General of
India.
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
23.12.2024
SASHIKANTA MISHRA, J.
Being aggrieved by order passed by the Passport
Officer, Bhubaneswar in impounding his Passport, the
Page 1 of 19
petitioner has approached this Court seeking the following
relief:-
“It is therefore prayed that this Hon’ble Court
may be graciously pleased to admit the writ
application, issue notice to the opp. parties and after
hearing the counsel from both the sides, allow the
same and directing the opp. Parties to quash the
impounding order dated 04.11.2022 and 10.11.2022
vide Annexure-1 and 2 respectively bearing Passport
No. U1497323.
And further be pleased to direct the opp. parties
to restore the petitioner’s Passport vide No. U1497323
which is valid till 25.12.2029.
And pass any other order/orders would be
deem fit and proper as facts and circumstances of the
case.
And for the said act of kindness, the petitioner
shall as in duty bound ever pray.”
2. Bereft of unnecessarily details, the facts of the case
are that the petitioner is the holder of Passport bearing
No.U1497323 with validity up to 25.12.2029. Said
Passport was granted on post Police Verification Report
(PVR) basis. Subsequently, police submitted adverse PVR
stating that the petitioner was involved in Jagatsinghpur
Marine P.S. Case No. 26 dated 22.08.2010 under Sections
407/408/411/420/468/471/379/120(b) of IPC and the
case has already been charge-sheeted. Accordingly, show
Page 2 of 19
cause notice dtd. 27.01.2020 followed by reminder dated
15.04.2020 was issued to the petitioner. The petitioner
approached this Court in W.P.(C) No.13013 of 2022 with
prayer to release/restore the Passport. In the meantime,
the petitioner was granted bail as per order passed by this
Court in BLAPL No.16395 of 2010 in the aforementioned
criminal case. This Court, by order dated 03.08.2022,
disposed of the writ petition granting liberty to the
petitioner to provide necessary documents before the
Passport Authority and also directed the said authority,
while considering the matter, to keep the judgment of this
Court rendered in W.P.(C) No.4834 of 2022 in mind. In the
meantime, the petitioner filed his show cause reply to the
notice dated 18.08.2022, but, as the matter was delayed
by the Passport Authority, he approached this Court again
in WP(C) No.24843 of 2022. This Court disposed of the
writ petition by order dated 13.10.2022 directing the
Passport Authority to complete the exercise involved
within a stipulated period. The Passport Authority, by
order dated 04.11.2022, impounded the Passport of the
Page 3 of 19
petitioner as per Section 10(3) (e) of the Passport Act. Said
order was followed by order dated 10.11.2022 reiterating
the order of impounding by distinguishing the case of
Asutosh Amrit Patnaik [W.P.(C) No. 4834 of
2022)decided by this Court]. On such facts, the petitioner
has approached this Court seeking the relief, as already
stated hereinbefore.
3. Counter affidavit has been filed by the opposite
parties, inter alia, stating that cognizance of criminal case
by the Court against a person holding a valid Passport
attracts Section 10(3)(e) of the Passport Act, 1967.
Secondly, the petitioner is guilty of material suppression
of facts, inasmuch as, while applying for Passport, he had
not disclosed the fact of pendency of the criminal case
against him, which attracts Section 10(3) (b) of the Act.
Accordingly, show cause notice was issued to him on
27.03.2010 followed by reminder on 15.04.2010. Again
show cause notice was issued on 22.04.2022 followed by
reminder on 18.08.2022. In his reply dated 24.08.2022,
the petitioner informed that inadvertently he had omitted
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to mention about the pendency of the criminal case as he
was under impression that the case had been closed as he
was granted bail by this Court and there was no
communication from the Court. Considering the
petitioner’s reply, a sympathetic view has been taken and
penal action under Section 10(3)(b) of the Act has been
ignored. However, fact remains that a criminal case is still
pending, while the petitioner holds a valid Passport, which
attracts Section 10(3)(e) of the Act. It is further stated that
the judgment passed in the case of Asutosh Amrit
Patnaik (supra) involves a case of re-issue of Passport,
which was refused under Section 6(2)(f) of the Act, as a
criminal case was pending against the applicant. The
present case attracts Section 10(3)(e) and not Section
6(2)(f) of the Act. Further, GSR 570 (E) only gives special
permission for issue/re-issue of Passport to persons
having criminal case pending against them and who are
required to go abroad on emergency consideration. In
such cases, a Short Validity Passport (SPV) is issued.
Such is also not the case at hand. It is further stated that
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remedy of appeal is provided against the order passed
under Section 10(3) to the Appellate Authority being Joint
Secretary (PSP) and Chief Passport Officer, which the
petitioner has not invoked.
4. Heard Mr. Millan Kanungo, learned Senior Counsel
with Sri S. Das for the petitioner and Mr. P.K. Parhi,
learned Deputy Solicitor General of India for the Union of
India.
5. Mr. Kanungo would argue that the criminal case in
question having been compromised between the parties
and sent to the dormant file with the petitioner being
granted bail, he was under the bonafide impression that
the case had been dropped, as there was no further
communication from the Criminal Court. Nevertheless,
mere pendency of a criminal case cannot be a bar for a
person to travel abroad and his Passport cannot be
impounded, as it would amount to violation of Article 21
of the Constitution of India. Mr. Kanungo relies upon the
judgment of the Supreme Court in the case of Satwant
Page 6 of 19
Singh Sawhney v. D. Ramarathnam and Others1. Mr.
Kanungo further submits that the power under Section
10(3)(e) is a discretionary power, which does not provide
that in every case, where criminal case is pending, the
Passport must necessarily be impounded, but only in
cases where there is flight risk that such a drastic step
can be taken. Mr. Kanungo further relies upon a judgment
passed by the Allahabad High Court in the case of
Mohammad Umar v. Union of India and others2 wherein
the above view was taken.
6. Mr. Parhi, learned DSGI, on the other hand, would
argue that the petitioner is guilty of suppression of
material facts, as he did not disclose the fact of pendency
of the criminal case against him at the time of applying for
the Passport. Secondly, show cause notice was issued
before passing of the impugned order, as directed by this
Court. Thirdly, the Passport Officer has passed a
reasoned order and the petitioner, if aggrieved, should
have preferred an appeal instead of directly approaching
1
AIR 1967 SC 1836
2
2024 SCC OnLine All 3867
Page 7 of 19
this Court. According to Mr. Parhi, therefore, the writ
petition is not maintainable.
7. The first question that falls for consideration is
whether the writ petition is maintainable in view of
availability of alternative remedy in the statute. In this
regard, the provision under Section 11 of the Passport Act,
1967 has been referred to, which reads as follows:-
“1. Any person aggrieved by an order of the passport
authority under clause (b) or clause (c) of sub-section
(2) of section 5 or clause (b) of the proviso to section 7
or sub-section (1), or sub-section (3) of section 10 or by
an order under sub-section (6) of section 10 of the
authority to whom the passport authority is
subordinate, may prefer an appeal against that order
to such authority (hereinafter referred to as the
appellate authority) and within such period as may be
prescribed:
Provided that no appeal shall lie against any
order made by the Central Government.
(2) No appeal shall be admitted if it is preferred
after the expiry of the period prescribed therefore:
Provided that an appeal may be admitted after the
expiry of the period prescribed therefor if the appellant
satisfies the appellate authority that he had sufficient
cause for not preferring the appeal within that period.
(3) The period prescribed for an appeal shall be
computed in accordance with the provisions of the
Limitation Act, 1963 (36 of 1963), with respect to the
computation of the periods of limitation thereunder.
(4) Every appeal under this section shall be made
by a petition in writing and shall be accompanied by a
copy of the statement of the reasons for the order
appealed against where such copy has been
furnished to the appellant and [by such fee as may be
prescribed for meeting the expenses that may bePage 8 of 19
incurred in calling for relevant records and for
connected services.
(5) In disposing of an appeal, the appellate
authority shall follow such procedure as may be
prescribed:
Provided that no appeal shall be disposed of
unless the appellant has been given a reasonable
opportunity of representing his case.
(6) Every order of the appellate authority
confirming, modifying or reversing the order appealed
against shall be final.”
8. The impugned order also informs that the
petitioner may prefer an appeal under the above provision.
It is stated that such appeal lies to the Joint Secretary
(PSP) and Chief Passport Officer, PSP Division, the
Ministry of External Affairs. Admittedly, the petitioner has
not filed any appeal against the impugned orders.
Ordinarily, on the face of alternative remedy being
available, the writ Court would be slow to interfere. But,
in the instant case, no disputed question of fact is
involved, rather the lis involves interpretation of the
provision under Section 10 (3)(e) of the Passport Act.
Moreover, this is the third journey of the petitioner to this
Court seeking redressal of the self-same grievance. Among
the grounds of challenge urged in the present writ
application is that the authorities have not properly
Page 9 of 19
interpreted the directions issued by this Court in the
earlier writ applications. Thus, the present writ
application also involves interpretation of the earlier
orders passed by this Court. Therefore, it would not be
proper to relegate the petitioner to invoke the alternative
statutory remedy of appeal at this stage, rather on the
face of undisputed facts, this Court, in the interest of
justice can attempt to bring about a quietus to lis by
examining the legality of the impugned order vis-a-vis the
statutory provisions.
This Court, therefore, holds that notwithstanding the
availability of alternative remedy of appeal, the writ
petition would still be maintainable.
9. Having answered the preliminary objection raised
by the opposite parties, the next question that falls for
consideration is, whether the Passport Officer was
justified in impounding the Passport of the petitioner by
invoking the provision under Section 10(3) (e) of the Act.
Before proceeding further, it would be apt to mention that
the legal effect of holding a Passport is no longer res
Page 10 of 19
integra having been delineated in the Constitution Bench
decision of the Supreme Court in the case of Satwant
Singh Sawhney (supra), cited by Mr. Kanungo, learned
Senior Counsel. In that case, noting that a Passport is
essentially required for a person travelling abroad, the
Constitution Bench posed a question whether a person
living in India has a fundamental right to travel abroad. In
this context, it was held that under Article 21 of the
Constitution, no person can be deprived of his right to
travel, except according to procedure established by law.
In the case of Maneka Gandhi v. Union of India,3 further
analyzing the import of Article 21 of the Constitution, it
was held that in quasi-judicial functions, the
administrative authority must conform to the principle of
natural justice. It was further held that every action of
the executive Government must inform the reasons and
should be free from arbitrariness, which is the very
essence of rule of law and its basic minimum requirement.
10. The impugned order is to be tested in the light of
the above salutary principle of law. As already stated, the
3
AIR 1978 SC 597
Page 11 of 19
only ground, on which the petitioner’s Passport was
impounded, is pendency of a criminal case against him.
Though much has been argued about the status of the
case as also the fact that the petitioner is on bail in the
said case, the same, in the considered view of this Court,
is not very relevant, inasmuch as, the fact that a criminal
case is pending is undeniable and hence, that alone is the
material consideration. In this context, it would be useful
to refer to Section 10 of the Passport Act, which reads as
follows:-
“10. Variation, impounding and revocation of passports
and travel documents
(1) The passport authority may, having regard to the
provisions of sub-section (1) of section 6 or any
notification under section 19, vary or cancel the
endorsements on a passport or travel document or may,
with the previous approval of the Central Government,
vary or cancel the conditions (other than the prescribed
conditions) subject to which a passport or travel
document has been issued and may, for that purpose,
require the holder of a passport or a travel document, by
notice in writing, to deliver up the passport or travel
document to it within such time as may be specified in
the notice and the holder shall comply with such notice.
(2) The passport authority may, on the application of the
holder of a passport or a travel document, and with the
previous approval of the Central Government also vary
or cancel the conditions (other than the prescribed
conditions) of the passport or travel document.
Page 12 of 19
(3) The passport authority may impound or cause to be
impounded or revoke a passport or travel document,-
(a) if the passport authority is satisfied that the holder of
the passport or travel document is in wrongful
possession thereof;
(b) if the passport or travel document was obtained by
the suppression of material information or on the basis
of wrong information provided by the holder of the
passport or travel document or any other person on his
behalf;
[Provided that if the holder of such passport obtains
another passport the passport authority shall also
impound or cause to be impounded or revoke such other
passport]
(c) if the passport authority deems it necessary so to do
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;
(d) if the holder of the passport or travel document has,
at any time after the issue of the passport or travel
document, 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;
(e) if proceedings in respect of an offence alleged to have
been committed by the holder of the passport or travel
document are pending before a criminal court in India.
(f) if any of the conditions of the passport or travel
document has been contravened;
(g) if the holder of the passport or travel document has
failed to comply with a notice under sub-section (1)
requiring him to deliver up the same;
(h) if it is brought to the notice of the passport authority
that a warrant or summons for the appearance, or a
warrant for the arrest, of the holder of the passport or
travel document has been issued by a court under any
law for the time being in force or if an order prohibiting
Page 13 of 19
the departure from India of the holder of the passport or
other travel document has been made by any such court
and the passport authority is satisfied that a warrant or
summons has been so issued or an order has been so
made.
(4) The passport authority may also revoke a passport or
travel document on the application of the holder thereof.
(5) Where the passport authority makes an order varying
or cancelling the endorsements on, or varying the
conditions of, a passport or travel document under sub-
section (1) or an order impounding or revoking a
passport or travel document under sub-section (3), it
shall record in writing a brief statement of the reasons
for making such order and furnish to the holder of the
passport or travel document on demand a copy of the
same unless in any case, the passport authority is of the
opinion 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 a copy.
(6) The authority to whom the passport authority is
subordinate may, by order in writing, impound or cause
to be impounded or revoke a passport or travel
document on any ground on which it may be impounded
or revoked by the passport authority and the foregoing
provisions of this section shall, as far as may be, apply
in relation to the impounding or revocation of a passport
or travel document by such authority.
(7) A court convicting the holder of a passport or travel
document of any offence under this Act or the rules
made thereunder may also revoke the passport or travel
document:
Provided that if the conviction is set aside on appeal or
otherwise the revocation shall become void.
(8) An order of revocation under sub-section (7) may also
be made by an appellate court or by the High Court
when exercising its powers of revision.
(9) On the revocation of a passport or travel document
under this section the holder thereof shall, without
delay, surrender the passport or travel document, if thePage 14 of 19
same has not already been impounded, to the authority
by whom it has been revoked or to such other authority
as may be specified in this behalf in the order of
revocation.”
11. On a plain reading of the provision quoted above, it
would be clear that power has been conferred on the
authority to impound the Passport of a person, inter alia,
on the ground of pendency of a criminal case against him.
The use of word ‘may” in Sub-section (3) clearly signifies
that the power so vested is discretionary and not to be
construed as mandatory. In fact, in the judgment of the
Allahabad High Court rendered in the case of Mohammad
Umar(supra), the very same interpretation was made in
the following words:-
“11. We find that the legislature under Section 10 (3)
(e) of the Passports Act, 1967 had deliberately used
word ‘may’ meaning thereby that in the eventualities
enumerated under Section 3 of the Passports Act,
1967 of the passport officer by recording reasons can
impound passport but it is not necessary that in every
case falling under Section 3 the passport officer is
mandatorily required to impound the passport. The
legislature under Section 10 (3) (e) has given
power/discretion to the passport authority that if he is
satisfied then he can impound the passport of a
person on the ground of pending proceedings in
relation to an offence in the criminal court, therefore
prior to passing the order of impounding passport, the
passport officer after considering the facts and
circumstances of each case has to record reasons to
arrive at a conclusion that due to pending criminalPage 15 of 19
proceedings in a criminal court, the passport holder
may misuse the passport for avoiding his appearance
before the court and can delay the conclusion of the
proceedings.”
The Allahabad High Court further relied upon
observations made by the Supreme Court in the case of
Suresh Nanda v. CBI4 in its judgment. The following
observations are noteworthy:-
“That impounding of passport entails civil
consequences and in view of this, the Authorities are
duty bound to give opportunity of hearing to the
person concerned.
There is no doubt on this fact that discretion is vested
with the Passport Authority in terms of section 10 of
the Passports Act, 1967 but it is not at all mandatory
on the passport authority to impound or cause to be
impounded or revoke a passport or travel document if
proceedings in respect of offence merely alleged to
have been committed by the holder of the passport or
travel document are pending before the Court in India.
Pendency of criminal case against the holder of
passport would not automatically result in
impounding of his passport and the mere fact that
certain conditions specified in Section 10 (3) of the Act,
on the basis of which a passport can be impounded,
subsists in a given case cannot by itself result in
impounding of passport automatically and once the
Passport Authority, in his wisdom, chooses to exercise
his discretion in the said direction as to whether on
account of pendency of such criminal case, the
passport in question should be impounded or not,
then, at the said point of time, the Passport Officer
should apply his mind looking into the nature of the4
(2008) 3 SCC 674Page 16 of 19
criminal cases that have been lodged/initiated
against the petitioner and further that if a passport is
not impounded, then there are possibilities that the
incumbent would not at all face the criminal cases.
Even if criminal case is pending against a person that
by itself does not require passport authority to
impound/revoke the passport in every given case. It is
only in appropriate cases for adequate and cogent
reasons such an order could be passed. While passing
order of impounding/revocation of passport, merely by
quoting the requirement mentioned in the section is
clearly indicative of circumstance that order has been
passed without there being any objective
consideration of the subject matter.”
12. The impugned order does not whisper a word as to
why the passport of the petitioner was considered
necessary to be impounded or what consequences would
have ensued if such a course of action is not undertaken.
It is evident that the decision to impound the Passport
was taken simply by observing that a criminal case is
pending and by referring to the statutory provision
without citing as to how it was considered necessary or
what consequences would have followed, if such order
would not be passed. It is trite law that when
discretionary power is vested on a quasi judicial authority,
it is absolutely necessary that proper reasons are to be
cited by it, while determining or adjudicating any matter.
Tested in the backdrop of the above requirement, the
Page 17 of 19
impugned order falls short by a long margin and therefore,
cannot be sustained.
13. As regards applicability or otherwise of the
judgment of this Court in Ashutosh Amrit (supra), no
doubt, the said case involved refusal of the authorities to
renew a Passport, on the ground of pendency of criminal
case, by invoking the provision under Section 6(2)(f) of the
Act. But then, the basic reason, i.e., pendency of the
criminal case, is common to both the cases. It would be
absurd to hold that pendency of criminal case, as referred
to in Section-6, would have a different consequence than
Section-10. Evidently, only the action to be taken would
be different, as both the provisions operate at different
stages. However, the spirit behind the two provisions
remains the same, i.e., effect of pendency of a criminal
case on renewal of passport and on an existing passport.
That apart, there is no absolute bar in the Act for issuing
and renewing the passport on the ground of pendency of
criminal case. As already stated, the provision under
Section-10(3) is not mandatory, but discretionary. So, if
Page 18 of 19
the provisions of the Act are read as a whole, it would
imply that mere pendency of criminal case cannot, in all
cases, lead to impounding of the Passport.
14. For the foregoing reasons therefore, this Court is of
the considered view that the impugned orders cannot be
sustained in the eye of law and therefore, deserve
interference by this Court.
15. In the result, the writ petition is allowed. The
impugned orders under Annexures-1 and 2 are hereby
quashed. The opposite party-authorities are directed to
restore the Passport in favour of the petitioner within two
weeks from today.
………………………….
(Sashikanta Mishra)
Judge
Orissa High Court, Cuttack,
The 23rd December, 2024/`B.C. Tudu, Sr. Steno
Signature Not Verified
Digitally Signed
Signed by: BHIGAL CHANDRA TUDU
Designation: Sr. Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 24-Dec-2024 17:27:16
Page 19 of 19
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