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Parameters to govern issuance of passports to those accused in criminal cases

Parameters to govern issuance of passports to those accused in criminal cases

Thadevoose Sebastian Vs Regional Passport Officer

Kerala HC


WP(C) NO. 15182 OF 2021

About/from the judgment:

The High Court laid down a slew of parameters to be considered by criminal courts while granting permission for issuance of passports to those involved in criminal proceedings.

The Court stated that grant of permission to attain a passport will be a process of balancing the fundamental right of a citizen to travel abroad and ensuring that persons accused in crimes are present during their trial.

The Court asserted that it is important to lay down parameters so that the decision can be taken in an objective manner.

"The grant of permission by the Magistrate enabling an accused to travel abroad will be of great significance, especially since it will be a process of balancing the fundamental right of a citizen to travel abroad and the need to ensure the presence of the accused during trial. Many a time, the consideration results in subjective satisfaction of the Magistrate rather than the required objective satisfaction. To avoid subjectivity, it is necessary to lay down the parameters that can govern the grant of permission for future guidance," the judgment stated.

The Court did so keeping in mind that an accused must be presumed innocent until guilty and false prosecutions can adversely affect citizens' future.

Pertinently, it did not shy away from remarking on the delay in completion of criminal trials in India despite efforts to combat the same.

"This Court cannot also lose sight of the fact that criminal trials in our country take ages to complete, notwithstanding the efforts at reducing delay. Adding to all these, with the Covid-19 pandemic having halted the continuity of trials in many trial courts, further delay is a forgone conclusion and to say the least," the Court said.

The parameters that shall govern the grant of permission by the criminal courts in the matter of issuance of passports to those involved in criminal proceedings pending in courts shall be as follows:

The stage of the criminal proceeding and the duration of time within which the trial may take place;

The criminal antecedents and past conduct of the accused;

The nature and gravity of the crime; offences under Statutes dealing with acts of terrorism and acts of smuggling should require a different consideration;

In heinous crimes, if the court decides to grant permission,the period for which permission is granted can be limited;

Chances of the accused fleeing or evading the trial in the case;

Mode in which the presence of the accused can be ensured during trial, including stipulating conditions like providing the address/ change of address in the country of residence abroad, either with the Indian Consulate at the country of residence abroad or with the Court where the trial is pending;

Since in cases where time is not fixed by the Magistrate while granting permission, the passport authorities are issuing passports only for one year, the period for which the accused can be permitted to travel can also be fixed by the Magistrate, while granting permission.

The Court clarified that this is not an exhaustive list and that criminal courts may incorporate other reasonable safeguards to ensure the presence of the accused during trial into the order granting permission, if the circumstances warrant it.

The judgment was passed on a petition filed by a person who had lost his passport issued from Dubai while he was in Kerala. While he quickly applied for a fresh passport, a case was registered against him for offences punishable under the Indian Penal Code and the Passport Act, 1967.

Thereafter, the petitioner was informed from the passport office that due to the adverse report on the pendency of the crime, the file for issuance of passport was closed.

Almost five years after the closure of the file relating to his application for issuance of passport, petitioner applied afresh, for a new passport, claiming that the police had dropped the proceedings against him.

However, he later submitted that the criminal case against him is still pending investigation.

Looking at the progression of the laws governing the right to travel, the Court found that it is indubitable that the right to travel beyond the frontiers of our country is a facet of personal liberty under Article 21 of the Constitution of India (Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi and Ors, and Maneka Gandhi v. Union of India And Anr.)

The Court said that however comprehensive the said liberty be, it is still subject to ‘procedure established by law’.

After the Passport Act was enacted in 1967, a law came into existence which enabled denial merely on the ground of existence of a criminal proceeding.

However, the Government of India issued a notification, which is statutory in character, exempting citizens of India against whom criminal proceedings are pending before a criminal court from being denied passports on condition that the applicant produces orders from the court concerned permitting to depart from India.

The Court took into account several relevant decisions of the Supreme Court and various other High Courts and the submissions of the counsel for the petitioner, advocate Saju S Nair and the the Central Government Counsel advocate Jaishankar V Nair.

The Court found that there are still lacuna about the parameters that govern the grant of no objection by criminal courts.

While the Court made it clear that it is for the legislation to fill the gaps in the existing system, until such time as it does so, the Court must lay down some common parameters to be followed.

"It is for the legislature to fill up the lacuna by recourse to its rule making power or through proper amendments, such amendments have unfortunately not been forthcoming. It is essential that till then there must be some yardstick to govern the grant of such no objections by criminal courts as otherwise, there is a possibility of the grant of permission turning into a subjective satisfaction rather than an objective one"

Therefore, the Court passed the judgment laying down the parameters to be considered by criminal courts while deciding such matters in the future.

Read the Judgment


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