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No need for trial court's permission to renew passport when criminal proceedings are stayed by higher court
Kasturi Rajupeta Vs Union of India
WRIT PETITION NO. 19203 OF 2021
About/from the judgment:
The High Court has held that the permission from a trial court is not necessary for renewal of passport when the proceedings are stayed by a higher court.
The Court directed the Regional Passport Officer to consider a woman's application for renewal of her passport without insisting upon a facilitative order from the concerned Criminal Court before whom a case registered against her is pending.
While allowing the petition filed by KASTURI RAJUPETA, the Court said, "This petition succeeds. A Writ of Certiorari issued quashing the impugned Endorsement. A Writ of Mandamus issues to the 3rd respondent-Regional Passport Officer to consider petitioner's subject application in light of the observations hereinabove made and without insisting upon any order from the Criminal Court concerned. Time for compliance is six weeks."
It added, "However, justice of the case warrants a stipulation by this Court that petitioner shall not travel abroad without leave of the Criminal Court concerned, regardless of she being issued or not issued the passport."
The petitioner had approached the seeking invalidation of the Endorsement dated 06.09.2021 issued by the Regional Passport Officer and for a direction to consider her application for renewal of the passport, which has since expired. The RPO had rejected her application on the grounds that a criminal case is pending against her and the petitioner is required to furnish an order from the concerned court as per notification issued in the year 1993 by the Ministry of External Affairs.
Respondent opposed the plea
Assistant Solicitor General appearing for the respondents submitted that a criminal case is pending against the petitioner and therefore she should obtain and produce a facilitative order at the hands of the learned Judge of the said Court, so that her application for renewal of passport may be favourably considered.
The bench noted that the Right to travel is an inviolable human right enshrined under Article 13 of the UNIVERSAL DECLARATION OF HUMAN RIGHTS. Under our Constitution, the Right to travel abroad is held to be a facet of fundamental right to life & liberty guaranteed under Article 21 vide MANEKA GANDHI vs. UNION OF INDIA AIR 1978 SC 597.
Then the court said that the impugned Endorsement is structured on the ground that a criminal case is pending inter alia against the petitioner. The same having been challenged in W.P.No.14431/2020, a Coordinate Bench of this Court has stayed all further proceedings before the Trial judge vide interim order dated 10.12.2020, is not in dispute.
Following which it observed, "That being the position, the respondent- RPO is not justified in asking the petitioner to go to the Trial the learned Trial Judge to seek permission to travel aboard in the 'stayed proceedings'."
It added, "The Notification dated 25.08.1993 purportedly issued under Section 22 of the Act, normally expects an order of the kind and this norm is applicable in ordinary circumstances, in the sense that the criminal proceedings are not stayed and hands of the Trial Judge are free to work, and not in the circumstances that have tied his hands. A contention to the contrary amounts to asking the citizen to do an impossible act."
Holding that the Notification has to be construed consistent with the Fundamental Right of aperson to travel abroad and of possibility of its invocation, as discussed above. The bench opined, "When all further proceedings in the criminal case are interdicted by a higher Court, this Notification cannot be pressed into service to deny petitioner's request for renewal/re-issuance of passport, only on the ground that a criminal case is pending. What is to be seen is the intent, content & invocability of the Notification. Otherwise, it amounts to burying the spirit of law by operating its black letter."
Relying on the Apex court judgement in the case of CHAMUNDI MOPEDS vs. CHURCH OF SOUTH INDIA TRUST 1992 (3) SCC 1. The bench said, "Merely because a criminal proceeding is said to be pending, the obtainment of permission from the Court concerned does not become imperative regardless of the circumstances.
The court also observed, "The provisions of Section 6(2)(f) employing the expression "proceedings … are pending before a criminal court" have to be liberally construed keeping in view other specific scenario mentioned in the companion clauses of the said sub-section."
It added, "The observations made by a Co-ordinate Bench in its interim order in petitioner's W.P.No.14431/2020 about furnishment of her travel itinerary itself can be construed as the permission contemplated under the 1993 Notification. There is no need for one more order at the hands of Trial Magistrate more particularly when no specific format is legally prescribed."
Finally it remarked, "Courts are meant for doing real justice to the causes brought before them and they cannot turn away the aggrieved parties by quoting some constitutional theories, when justice is apparently due to them."
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