Rajasthan High Court – Jodhpur
Nizamuddin Khan Dilawer Khan vs State Of Rajasthan (2025:Rj-Jd:3852) on 20 January, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:3852]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Writ Petition No. 2736/2024
Nizamuddin Khan Dilawer Khan S/o Yasin Khan Dilawar Khan,
Aged About 62 Years, R/o Near Masjid Telya, Athuna Mohalla, W
No 30, Churu, Rajasthan. At Present U.a.e.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. The Regional Passport Officer, (Jaipur) J-14, Jhalana
Institutional Area, Jhanalna Doongari, Jaipur- (Raj)
302051
3. Union Of India, Through Secretary Ministry Of External
Affairs, Government Of India New Delhi.
----Respondents
For Petitioner(s) : Ms. Ranjana Singh Meratia
For Respondent(s) : Mr. Vikram Rajpurohit, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
20/01/2025
1. By way of filing the present Criminal Writ Petition under Article
226 of the Constitution of India, the petitioner is seeking direction
to the authorities concerned to consider his application for renewal
of passport No. L3822733.
2. The facts necessary for consideration in the present petition
are that presently, the petitioner is working at AL Hofuf, UAE. His
passport No. L3822733 was expired on 27.11.2023 and when he
applied for renewal of the same, he came to know that a criminal
case has been decided against him for the offences under Sections
363, 366A, 376(2) of IPC in his absence wherein he has been
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declared absconder vide judgment dated 03.09.2008. Hence, the
instant Criminal Writ Petition.
3. Learned counsel for the petitioner submits that the petitioner
came to know regarding the decision of the Sessions Case
No.22/1987, 6/2008 (40/20-14) (State Vs. Pratap @ Ismile
Khan & Ors.) when he applied for renewal of the passport. Now,
he is ready and willing to surrender himself before the learned
Session Court, Churu after returning back to the country but he is
unable to do so due to expiry of his passport. Thus, it is prayed
that the instant Writ Petition may be allowed and the concerned
authorities may be directed to renew his passport.
4. Learned Dy.G.A has opposed the submission made by the
counsel for the petitioner.
5. I have heard the learned counsel for the parties and have
gone through the material available on record as also the reply
filed by the Passport Authority of State of Rajasthan, Jaipur.
6. It is significant to note here that the Passports Act, 1967
(hereinafter referred as “The Act“) 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 for issuance/renewal of
passport 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:–
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(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 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 thedeparture 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
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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
issued for one year;
(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)
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(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 can 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.
7. 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.
8. Considering the overall view of the case with the provisions
mentioned above and the very fact that the petitioner is ready and
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willing to surrender himself before the learned Session Court,
Churu in the case wherein he has been declared as absconder and
a criminal case has already been decided against him in his
absence, this Court is inclined to accept the instant criminal writ
petition.
9. This Court feels that if the petitioner wants to appear before
the Court, so that judicial proceedings against him may come to
an end which will not be completed or culminated until he will not
appear before the Court, it is thus, felt expedient to allow him to
come to India to face the trial. Learned counsel for the petitioner
has also assured that the petitioner will surrender himself after
coming back to India, therefore his passport shall be renewed.
10. In case, if his passport is not renewed then one of the
predicaments would be that the trial would remain inconclusive
and same remain pending until his appearance. When a person is
willing to cooperate, wants to surrender before the Court which
may ultimately lead to culmination of a judicial proceeding then
the propriety would be to enable him to visit the country.
10. Accordingly, the instant Criminal Writ Petition is allowed. The
Authorities concerned are directed to consider the application filed
by the petitioner for renewal of his passport No. L3822733 on the
condition that the petitioner shall furnish an undertaking to the
fact that he shall surrender himself before the Court of learned
Session Court, Churu within a period of one month from the date
of his returning to India whereupon the learned Judge shall pass
an order afresh in accordance with law.
(FARJAND ALI),J
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285-divya/-
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