Patna High Court – Orders
Gautam Rana vs The Union Of India on 10 April, 2025
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16278 of 2024
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Gautam Rana, Son of Chandra Bhusan Singh, resident of Village- Madhudih
P..S.- Pipra District- East Champaran.
... ... Petitioner/s
Versus
1. The Union of India through the Ministry of External Affair, Government of
India.
2. The District Passport Officer, Regional Passport Office, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shashank Chandra- Advocate
Mr. Priyesh Kumar- Advocate
Mr. Nitish Kumar- Advocate
For Union of India : Mr. Additional Solicitor General
Mr. Alok Kumar- C.G.C.
For the State : Mr. Divit Vinod- AC to SC-26
======================================================
CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
5 10-04-2025
1. Heard learned counsel for the petitioner
and the learned Central Government Counsel appearing on
behalf of the Union of India and learned counsel for the State.
2. The learned counsel appearing on behalf of
the petitioner submits that petitioner was issued a passport
bearing Passport No.L7755894 on 11.03.2014 and the same
was valid upto 10.03.2024 as would manifest from Annexure-
1 to the writ application.
3. It is next submitted that during currency of
the passport, no complaint whatsoever was made against the
petitioner alleging any violation of the condition and misuse
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of the passport. It is further submitted that petitioner was
made an accused in a criminal case being Pipra P. S. Case
No.40 of 2023 dated 28.01.2023 registered under Sections
341, 323, 342, 324, 307, 379, 504, 506 and 34 of the I.P.C.
read with Section 27 of the Arms Act. The petitioner was
granted the privilege of anticipatory bail by an order dated
13.09.2024 in Cr. Misc. No.47612 of 2024 (Annexure- P/2)
passed by this Court on the ground that the case has been
compromised (Annexure- P/2A).
4. The petitioner applied for renewal of his
passport on 12.12.2023 on urgent basis and the passport was
renewed on 15.12.2023 (Annexure- P/3). It is submitted that
during course of verification, it transpired that petitioner has
been made an accused in Pipra P. S. Case No.40 of 2023,
accordingly, the respondent no.2 based on the said
information, impounded the passport of the petitioner by an
order dated 07.02.2024 (Annexure- P/4), which is impugned
in the instant writ application.
5. It is next submitted that respondent no.2
impounded the passport of the petitioner in exercise of power
conferred under Section 10((3)(e) of the Passport Act, 1967
with a direction to the petitioner to submit his passport
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forthwith with the passport office.
6. The learned counsel submits that Section
10(5) of the Passport Act, 1967 incorporates:- “(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.”
7. It is submitted that from conjoint reading of
Section 10(3)(e) and Section 10(5) of the Passport Act, 1967,
it would manifest that it is mandatory for the Passport Officer
to give reason for recording his satisfaction that a case for
impounding the passport is made out under Section 10(3)(e)
of the Passport Act, 1967 and only on the basis of pending
criminal case against the petitioner, the petitioner’s passport
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has been impounded under Section 10(3)(e) of the Passport
Act, 1967.
8. It is submitted that the Passport Officer
thus was required to record reasons for arriving at a
conclusion that as to why impounding of the passport was
necessary, in view of pending criminal case, but then, the
order impugned does not even briefly record the reason for
impounding the passport.
9. It is next submitted that investigation in
Pipra P. S. Case No.40 of 2023 is still pending. It is further
submitted that the police after investigation may submit
charge-sheet connecting the petitioner with the offence
finding the allegations to be true, or after investigation the
police may come to a considered conclusion that petitioner is
innocent and may file final form exonerating the petitioner
from the allegations, but in both the situation, the police
report will attain finality only when the learned trial Court
applies its judicial mind on the point of cognizance. It is
submitted that even if the police submits a charge-sheet
finding the case to be true, the learned trial Court may accept
the charge-sheet and take cognizance, or the learned trial
Court after perusing the case diary may direct for further
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investigation or may refuse to take cognizance, if the material
collected during the course of investigation is not sufficient to
establish a criminal charge against an accused. Similarly, if
the police after investigation, submits final form exonerating
the petitioner of the allegation, the learned trial Court may
differ with the police report and take cognizance or may
accept the report or may direct for further investigation. It is
thus submitted that a criminal case instituted culminates only
when cognizance is taken and till the time cognizance is not
taken, the criminal case cannot be said to be pending before
the Court of competent criminal jurisdiction.
10. The learned counsel next submits that
impounding of passport entails civil consequences as it affects
the right of a person whose passport stands impounded, as
such, reason even briefly is required for impounding the
passport. It is next submitted that the order impugned is also
bad for the reason as the same was passed behind the back of
the petitioner without giving him any opportunity to put-forth
his case, more so, when the impugned action was adversely
affecting the petitioner.
11. The learned counsel for the petitioner next
submits that the Hon’ble Supreme Court in the case of
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Vangala Kasturi Rangacharyulu vs. Central Burearu of
Investigation 2020 Cri.L.J. (SC) 572, had held that the
refusal of passport can be only in case where applicant is
convicted during the period of five years immediately
preceding the date of application for an offence involving
moral turpitude and sentenced for imprisonment for not less
than two years.
12. The learned counsel for the petitioner next
submits that in Vangala Kasturi Rangacharyulu‘s case
(Supra), the appellant was convicted for offence punishable
under Sections 120B, 420, 468, 471 and 477A of the I.P.C.
read with Section 13(2) and 13(1) of the Prevention of
Corruption Act, 1988, the appeal filed by him was dismissed
by the High Court. However, the sentence was reduced to a
period of one year, thereafter the appellant had filed criminal
appeal before the Hon’ble Supreme Court, which was pending
consideration, while the criminal appeal of the appellant was
pending consideration before the Hon’ble Supreme Court, the
appellant filed an application for a direction upon the
respondents to give no objection for renewal of his passport
which expired on 12.11.2017 and it was informed to the
Hon’ble Supreme Court that the authorities orally informed
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the appellant that renewal of the passport was not being done
due to pendency of the criminal appeal on which, the learned
Additional Solicitor General submitted that renewal of
passport can be only after the applicant obtains permission
from the concerned trial Court and referred to Section 6.2 of
the Passport Act, 1967, arguing that passport authority has
power to refuse issuance of the passport in view of the
pendency of criminal appeal filed by him in view of Section
6.2(e) and (f) of the Passport Act. The Hon’ble Supreme
Court held that Section 6.2(f) relates to a situation where the
applicant is facing trial in a criminal Court and held
admittedly, at present, the conviction of the appellant stands
still the disposal of criminal appeal. The sentence which he
has to undergo is for a period of one year, the passport
authority cannot refuse the renewal of the passport on the
ground of pendency of the criminal appeal. Thus, directed the
authorities to renew the passport without raising objection
relating to the pendency of the criminal appeal before the
Hon’ble Supreme Court.
13. The learned counsel further submits that
the Hon’ble Supreme Court based on the facts of the case held
that renewal of passport cannot be refused merely because
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appeal was pending, but in the instant case, the passport has
been impounded merely for the reason that a criminal case has
been instituted which is still pending investigation.
14. It is further submitted that the Hon’ble
Supreme Court in the case of Sumit Mehta vs. the State
NCT of Delhi 2013 (15) SCC 570 at Para-13 observed:- “The
law presumed an accused to be innocent till his guilt is
proved, as a presumable innocent person, he is entitled to all
the fundamental rights including the right to liberty granted
under Article 21 of the Constitution of India.”
15. The learned counsel next submits that in
the instant case, the passport authority during pendency of the
investigation of the criminal case has impounded the passport
of the petitioner, treating the petitioner guilty of committing a
crime, when till date even cognizance has not been taken, as
such, the authority by his action has presumed the petitioner
guilty instead of presuming the petitioner to be innocent till
his guilt is not proved.
16. It is next submitted that merely because a
criminal case came to be instituted against the petitioner, as
such, his passport was impounded by the authority without
even realizing the consequences which it would entail. It is
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submitted that petitioner in absence of passport stands
crippled as he cannot go abroad. It is next submitted that the
Hon’ble Supreme Court in the case of Satish Chandra
Verma vs. Union of India and others reported in 2019
SCC online SC 2048 at Para-5 observed:- “The right to travel
abroad is an important basic human right for it narishes
independent and self determining creative character of the
individual, not only by extending his freedom of action, but
also by extending the scope of his experience. The right also
extends to private life, marriage, family and friendship which
are the basic humanities which can be affected to refusal of
freedom to go abroad and this freedom is a genuine human
right.”
17. The learned counsel thus submits that right
to travel abroad cannot be deprived except by just fair and
reasonable procedure, but then, in the instant case, the
authority merely because a criminal case is pending
investigation against the petitioner has deprived him of the
said opportunity by impounding his passport.
18. The learned counsel for the petitioner next
relying on a judgment of this Court in the case of Mewa Lal
Choudhary vs. The Union of India through the Secretary,
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Ministry of External Affairs and others reported in 2019
(4) P.L.J.R. 600, submits that the fact of the instant case is
similar to the case of Mewa Lal Choudhary‘s case as the
passport of Mewa Lal Choudhary was also impounded on the
ground that a criminal case was pending against him. It is
submitted that this Court after relying on the judgment of the
Hon’ble Supreme Court came to a considered conclusion that
passport of Mewa Lal Choudhary could not have been
impounded merely because a criminal case was pending
investigation against him and the learned counsel draws the
attention of the Court to Paras-12 and 13 of the judgment in
the case of Mewa Lal Choudhary (Supra):-
“12. Having regard to the law laid down by the
Hon’ble Apex Court in a catena of judgments, as
aforesaid, this Court is of the view that since neither
the charge sheet has been filed by the police nor
cognizance of the offence has been taken by the
learned Magistrate in the aforesaid pending Sabour
P.S. Case No. 35 of 2017, it cannot be said that a
criminal case is pending as against the petitioner
herein so as to warrant impounding of the passport of
the petitioner under Section 10(3)(e) of the Passport
Act, 1967, hence on this ground as well, the impugned
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accordingly set aside.
13. Considering the facts and circumstances of the
case and for the reasons mentioned herein above, the
order dated 24.10.2017 passed by the Assistant
Passport Officer, Regional Passport Office, Patna
(Bihar) in terms of Section 10(3) (e) of the Passport
Act, 1967 is quashed.”
19. The learned Central Government Counsel
appearing on behalf of the Union of India submits that a
counter-affidavit has been filed wherein the respondents have
rebutted the pleadings made in the writ application. It is
submitted that petitioner had applied in Tatkal Scheme under
Re-Issue category on 15.12.2023 and the passport was issued
to the petitioner on 15.12.2023 in post police verification
mode. Further, the police authorities submitted their report
that Pipra P. S. Case No.40 of 2023 is pending, accordingly,
the authority after receiving the police report issued letter
dated 21.12.2023 to the petitioner asking him to provide
explanation regarding the circumstances in which he had
suppressed the material information in his passport
application and obtained the said passport, but the petitioner
did not respond, thereafter impounding process was initiated
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and in this regard, letter dated 27.12.2023 was issued to the
petitioner to submit his explanation within 21 days regarding
the circumstances under which he had suppressed the material
information and why action should not be taken to impound
the passport under Section 10(3)(e) of the Passport Act, 1967.
Further, the Superintendent of Police, East Champaran in
respect of Pipra P. S. Case No.40 of 2023, submitted a status
report vide letter dated 23.01.2024 stating that petitioner is
named accused in the criminal case and warrant has been
issued. It is submitted that since petitioner did not avail the
opportunity given to him to furnish his explanation, as such,
his passport was impounded and the reason recorded in the
order impugned for impounding the passport under Section
10(3)(e) of the Passport Act was:- Criminal case is pending
before the Court.
20. The learned counsel appearing on behalf of
the petitioner rebuts the said submission of the learned C.G.C.
and submits that in the writ application, a specific pleading
has been made that the order impugned in the instant case
have been issued without issuing any notice and hearing the
petitioner. It is further submitted that no doubt in the counter-
affidavit, it has been averred that the respondent authorities
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issued letter dated 21.12.2023 and letter dated 27.12.2023, but
then, the said letters have not been brought on record, nor it
has been pleaded in the counter-affidavit that the letters were
served on the petitioner and thereafter, the petitioner chose not
to reply the same. The learned counsel for the petitioner
further submits that the reason assigned for impounding the
passport is fallacious for the reason that the respondent
authorities had impounded the passport on the ground that a
criminal case is pending against the petitioner before a Court,
but then, the criminal case instituted against the petitioner is
still under investigation, as such, it cannot be construed by
any stretch of imagination that the case is pending before a
Court of competent criminal jurisdiction. It is next reiterated
and submitted that it is only when cognizance is taken by the
learned trial Court, in that event only, it can be construed that
the matter has reached a Court of competent criminal
jurisdiction and the same is pending adjudication in a Court of
Law, but in the instant criminal case instituted against the
petitioner, till date, no charge-sheet has been submitted as the
case is still under investigation, as such, the date when the
order impugned was issued on the said date, the reason for
impounding the passport was not existing.
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21. The learned C.G.C. next submits that
though there was a specific direction of the authority in the
order impugned directing the petitioner to submit his passport
as the same was impounded, but then, the petitioner did not
submit the passport in pursuance of the order of the authority
competent. It is further submitted that even if the authority
had passed an order which was subject to challenge, but then,
petitioner could not have defied the said order by not
submitting his passport before the authority competent, as
such, the authority were of the view that petitioner could
misuse the passport for avoiding appearance before the Court.
22. The learned counsel for the petitioner
rebuts the said submission of the learned C.G.C. and submits
that no doubt, the petitioner did not submit the passport with
the Passport Officer in pursuance of the order impugned, but
then, the reason assigned for impounding the passport that the
petitioner might misuse the passport or may not appear in the
Court again appears to be fallacious for the reason that the
case till date has not reached the Court, as such, there was
absolutely no occasion for the petitioner to avoid appearance
before the Court. It is also submitted that once the passport
was impounded by the authorities by the order impugned, the
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same became a redundant document as the same could not
have been used for any purpose, as such, whether it remained
with the petitioner or the authorities was not of much
consequence. The learned counsel for the petitioner next
submits that the respondent authorities instead of assigning
reason for impounding the passport in the counter-affidavit
ought to have assigned the same in the order impugned itself
as the reason is the link between the material on which certain
conclusions are based. It is next submitted that an order
passed by an authority has to be judged on the basis of reason
stated in the order and its validity cannot be judged on basis
of reason placed on record by way of affidavit. It is further
submitted that giving reason minimizes chances of
arbitrariness and induce clarity.
23. The learned C.G.C., at this stage, submits
that the petitioner rushed to this Court without availing his
alternative remedy of appeal under Section 11 of the Passport
Act, on which the learned counsel for the petitioner submits
that the case was filed in the Year 2024 and was taken up on
24.10.2024 and respondents were directed to file counter-
affidavit by a learned Coordinate Bench. Further, on
03.01.2025, the respondents were given last chance by way of
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four weeks to file counter-affidavit, thereafter counter-
affidavit was filed, as such, the writ Court entertained the writ
petition. It is also submitted that a constitutional power vested
with High Court and the Supreme Court cannot be fettered by
an alternative remedy available in the statute, if the writ Court
comes to a conclusion that injustice has been done and the
order have been passed in breach of the statutory provision
affecting the right of a citizen, in that event, the writ Court
will not relegate the petitioner to avail alternative remedy.
24. After hearing the learned counsel for the
parties, the Court is in complete agreement with the
submissions made by the learned counsel appearing on behalf
of the petitioner that passport of the petitioner could not have
been impounded on the ground that a criminal case was
pending, since cognizance in the case till date as submitted
has not been taken, nor the said pleading in the writ
application has been denied by the authorities in their counter-
affidavit. Further, the order impugned impounding the
passport also does not assign any reason for impounding the
same, but then, the authorities have tried to explain the same
on affidavit by way of filing the instant counter-affidavit,
which cannot be looked into.
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25. Having regard to the facts and
circumstances of the case and also taking into consideration
the case laws relied by the learned counsel for the petitioner,
the order impugned dated 07.02.2024 passed by the
respondent no.2 impounding the passport of the petitioner is
hereby quashed.
26. Since the passport stands renewed and is
with the petitioner, as such, no further direction in that regard
is required.
(Satyavrat Verma, J)
vikash/-
U