Thursday, February 29, 2024

Non-cognisable offence cannot be basis for rejection of Passport application: Allahabad High Court

The Allahabad High Court has allowed the petition saying that the Director General of Police has also given his view that the reports with regard to the non-cognisable cases could not be made the basis for rejecting an application for issuance of passport if they had not been investigated into.

A Single Bench of Justice Siddhartha Varma and Justice Ajit Singh passed this order while hearing a petition filed by Basoo Yadav.

The writ petition has been filed for the issuance of a writ of mandamus directing the respondent no 2 to issue a passport in favour of the petitioner.

A further prayer has been made that the respondent no 3 i.e. the Passport Sewa Kendra, Varanasi may be directed to appropriately take action on the application which the petitioner had filed for the issuance of his passport.

In the case, the petitioner on 28.6.2022 had filled-up an online application form for the issuance of a passport and he was given an appointment for appearing before the passport office on 5.8.2022 at 11.30 AM.

When the petitioner reached on 5.8.2022 before the passport office, he was informed that there was a police report against the petitioner which stated that there were reports with regard to non-cognizable cases and therefore, the passport could not be issued to him.

Counsel for the petitioner states that thereafter the petitioner went back to district Azamgarh and filed an application on 11.8.2022 praying that the Court i.e the Court of Additional Chief Judicial Magistrate may call for a report from police station Nijamabad, District Azamgarh with regard to the two NCRs.

The Court on the very same day passed an order directing the Station House Officer, Police Station, Nijamabad to submit a report with regard to the petitioner’s application.

On 1.9.2022, the Station House Officer submitted a report wherein it was mentioned that there was no order of the Court for investigating into non-cognizable cases which were registered against the petitioner.

Counsel states that since the petitioner’s application for issuing a passport had already been rejected and there is no appeal provided against the order of rejection, the petitioner has filed the instant writ petition. When the case was being argued as a fresh case, counsel for the petitioner had argued that as per the provisions of the Code of Criminal Procedure, 1973, if there was no order of any Magistrate for investigation under section 155(1) CrPC then no police officer could investigate a non-cognizable case.

Counsel for the petitioner had also argued that normally non-cognizable cases had punishments which were ranging from one year to seven years and he submitted that as per section 468 CrPC, if cognizance of the cases could not be taken after a lapse of limitation, then the reports of the non-cognizable cases were worthless documents.

Counsel for the petitioner further stated that when there was no investigation ordered by the Magistrate, as was clear from the report of the Station House Officer dated 1.9.2022, then the petitioner also had no knowledge about the pendency of the case.

When the case was argued as a fresh case and the Court was of the view that the NCRs could not be taken cognizance of when the Magistrate had not ordered for any investigation, a direction was issued to the Director General of Police to send instructions.

Standing Counsel further submitted that with regard to pendency of criminal cases, section 6(2)(e) and (f) of the Passports Act were relevant.

Standing Counsel submitted that the issuance of a passport could be refused under section 6(2)(e) of the Passports Act if in the five years immediately preceding the date of the application, the applicant had 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.

Standing Counsel further relying upon section 6(2)(f) of the Passports Act stated that if proceedings in respect of an offence alleged to have been committed by the applicant are pending before a Criminal Court in India then also the passport application could be rejected. However, Standing Counsel submitted that as per the notification gazetted on 25.8.1993 which was issued under section 22 of the Passports Act by the Government of India, Ministry of External Affairs, passports could be issued in certain circumstances even while a criminal case was pending if there were orders of the Court.

The Court observed, Having heard counsel for the petitioner and Standing Counsel and after having gone through the instructions which have been sent by the Director General of Police, the Court is definitely of the view that no non-cognizable report which was registered could be taken into cognizance if no investigation was ordered by the concerned Magistrate. Even though in the instant case, whether the passport can be refused on the basis of the pendency of the criminal case is not the question involved, we are of the view that even during the pendency of any criminal case, passport could be issued/renewed as per the Government Order dated 25.8.1993 if the Court passes orders for that purpose. In the instant case, we do find that the application of the petitioner was rejected on the basis of the two reports of non-cognizable cases.

The Director General of Police has also given his view that the reports with regard to the non-cognizable cases could not be made the basis for rejecting an application for issuance of passport if they had not been investigated into.

Under such circumstances, the Court issued the following directions :-

(1) The passport form of the petitioner for the issuance of a passport be considered within a period of two weeks from the date of presentation of a certified copy of this order before the respondent no 2-Regional Passport Officer, Regional Passport Office, Vipin Khand, Gomti Nagar, Lucknow;

(2) Since we are finding that in quite a few cases the reports of non-cognizable cases in which the concerned Magistrate had not even ordered for investigation were being taken into account for rejection of passport, we issue a direction to the Director General of Police to instruct his officers to give a report with regard to the pendency of reports in non cognizable cases after appropriate and proper application of mind;

(3) Outright the passport applications be not rejected under section 6(2)(f) of the Passports Act if orders of the Court, where the criminal case is pending, have been passed as per the Government Order dated 25.8.1993. The Director General of Police to issue notification in this regard also.

With these observations, the Court allowed the writ petition.


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