The Punjab & Haryana High Court recently held that the bar on issuance of passport to persons facing proceedings in a criminal case under Section 6(2)(f) of the Passports Act is inapplicable to post-conviction or post-acquittal proceedings [Mohan Lal & Ors v. UOI & Ors]
A Bench of Justice Jagmohan Bansal held the following:
Clause (f) of Section 6(2) of Passport Act, 1967 is inapplicable to post-conviction or post-acquittal proceedings.
As soon as a person is convicted or acquitted, he would be governed by Clause (e) of Section 6(2) of 1967 Act.
Notification dated 25.8.1993 (of Central government) is applicable to criminal proceedings pending before trial court and as per instructions dated 10.10.2019, mere registration of FIR is not sufficient whereas a case should be registered before Court and Court must have taken cognizance
Clause (e) of Section 6(2) can be invoked if an applicant; within 5 years preceding the date of application, for the commission of an offence involving moral turpitude has been sentenced to imprisonment of not less than 2 years.
High Court is not criminal court in terms of Section 6(2)(f) of the 1967 Act
The relevant provisions under Section 6 of the Act are produced below:
“(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…on any one or more of the following grounds…
(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.”
Effectively, as soon as a person is convicted or acquitted, they will fall under Section 6(2)(e), under which provision passport can be denied if an applicant has been been convicted of an offence involving moral turpitude and has been sentenced to imprisonment of not less than two years, within five years before the date of application.
To reduce the number of legal disputes related to passport matters, the directed all passport authorities under its jurisdiction to take into account its observations and findings when processing both pending and future applications.
The Court was hearing a batch of pleas filed by convicts seeking directions to the Central government and relevant authorities for renewal/issue of their passports.
The State opposed the issue of passport to one of the petitioners, on the ground that he had been convicted and awarded a sentence of 10 years imprisonment.
The Court, however, relied on various Supreme Court and High Court judgments and observed that clause (e) of Section 6(2) comes into play as soon as trial is concluded.
“…in the clause (e), the legislature, as per its wisdom has enjoined three pre-requisites, which is conviction should be within 5 years preceding the date of application; conviction should be for any offence involving moral turpitude and sentence awarded must be not less than 2 years…In the absence of any one of three afore-stated pre-requisites, clause (e) cannot be invoked…”
Offering its rationale for the finding, the Court said,
“It is well known fact that conclusion of trial in India takes quite long time. Passing of 5 years period post-conviction, primarily though not absolutely, makes possibility of the applicant to flee from justice abysmally low.”
It further noted that the issue needs to be examined in light of the changed social, scientific and economic scenario vis-a-vis human and fundamental rights.
“…travelling to abroad has substantially increased and it has become part of life…Umpteen number of persons are travelling abroad for the sake of business or employment. If these persons are mechanically denied passport or permission to visit abroad, without allaying fear to flee from justice, not only would deprive them from their right to earn livelihood but also violate their fundamental right to freedom of business and profession, guaranteed by Article 19(1)(g) of the Constitution of India.”
Advocates Ish Puneet Singh, Sarbjit Singh, HS Jugait, Nakul Sharma, KDS Hooda and Janat Dhillon represented the petitioners.
Advocate Reeta Kohli was amicus curiae. Advocates Vandana Kohli, Ankur Sharma, Neha Sharma, KK Jund, Amit Arora and Maninder Singh appeared for the Central and State governments.
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