The Passports Act of 1967 regulates passport issuance in India, specifying grounds for denial, such as ongoing criminal proceedings. According to Section 6(2)(f), the passport authority can refuse applications from individuals facing pending criminal cases, aiming to uphold justice and national security. However, this must be balanced with the fundamental right to travel abroad protected under Article 21 of the Indian Constitution. Courts have clarified that the mere filing of an FIR does not suffice for passport denial; a valid judicial order and magistrate cognizance are necessary for Section 6(2)(f) to apply.

Furthermore, GSR 570(E), a notification issued by the Ministry of External Affairs, New Delhi dated 25.08.1993, allows individuals with pending criminal cases to apply for short-term passports if they obtain court approval. This legal framework demonstrates an effort to reconcile the state's regulatory needs with the fundamental rights of applicants, ensuring that travel restrictions are not unjustly enforced.

Section 6 of The Passports Act, 1967 - Denial of passports and travel documents

1. According to the other provisions of this Act, the passport authority will refuse to approve the request to visit any country under clause (b) or clause (c) of sub-section (2) of section 5 for one or more of the following reasons, and no other reasons:
   1. The applicant may, or is likely to, engage in activities in that country that could harm the sovereignty and integrity of India;
   2. The applicant's presence in that country may pose a threat to India's security, or is likely to do so;
   3. The applicant's presence in that country may adversely affect the friendly relations between India and that or any other country, or is likely to do so;
   4. The Central Government believes that the applicant's presence in that country is not in the public interest.
       
2. According to the other provisions of this Act, the passport authority must refuse to issue a passport or travel document for travel to any foreign country under clause (c) of sub-section (2) of section 5 for one or more of the following reasons, and no other reasons:
   1. The applicant does not hold Indian citizenship;
   2. The applicant might engage in activities outside of India that could potentially compromise the sovereignty and integrity of the country;
   3. The applicant's departure from India may pose a threat to India's security, or is likely to do so;
   4. The applicant's presence outside of India could negatively affect the amicable relations between India and any foreign nation, or has the potential to do so;
   5. The applicant has been convicted by an Indian court for any offence involving moral turpitude and sentenced to imprisonment for two years or more at any time during the five years preceding the application;
   6. There are current legal proceedings in a criminal court in India concerning an alleged offence committed by the applicant;
   7. A court has issued a warrant requiring the applicant to appear or be arrested in accordance with relevant laws, or has prohibited the applicant from leaving India;
   8. The applicant has been repatriated and has not paid back the costs associated with that repatriation;
   9. The Central Government is of the opinion that issuing a passport or travel document to the applicant would not serve the public interest.

Application for Passport:
Only citizens of India are eligible to acquire a passport according to the Passports Act (Section 3). Any passport issued to a non-citizen can be subject to impoundment or revocation (Sections 6(2) & 10). Under the Passports Act, both Indian citizens and foreign nationals are prohibited from leaving India without a valid passport or travel document. Passports and travel documents issued by the passport authority are considered property of the central government (Section 17). The individual holding a passport does not possess ownership rights over it and cannot use it as collateral or security for any third party.

To apply for the issuance of a passport or travel document, or for an endorsement on one, individuals must submit their application in the prescribed format to the passport authority (Sections 5 (1) & 1 (A)). This is followed by an inquiry conducted by the passport authority (Section 5 (2)).

Any directive from the passport authority prohibiting an individual from traveling must be accompanied by justifications. The applicant is entitled to receive a copy of this order, unless the passport authority believes that providing such a copy would be detrimental to the sovereignty and integrity of India, its security, its diplomatic relationships with other countries, or the interests of the general public, following Section 10 (5) of the Passports Act.

In general terms, under the provisions of the CrPC (currently known as Bharatiya Nagarik Suraksha Sanhita, 2023-BNSS), cognizance by the court may be taken in one of two ways: (a) following the submission of a charge sheet by the police authorities under Section 173 of the CrPC (now Section 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023-BNSS); or (b) upon a complaint lodged with the magistrate under Section 190 of the CrPC (now Section 210 of the Bharatiya Nagarik Suraksha Sanhita, 2023-BNSS).

Court Judgments:

• The existence of ongoing criminal proceedings may serve as a basis for the rejection or refusal of a passport application. According to Section 6 (2) (f) of the Passports Act, it is essential that these proceedings are pending in a criminal court. Consequently, it is crucial to grasp the definition of "criminal court" as mentioned in this section. In the case of Nilesh Heda v. Union of India dated 14.10.2015, the Rajasthan High Court examined this issue and noted that the term "criminal court" generally refers to trial courts that are established under the Criminal Procedure Code (currently known as Bharatiya Nagarik Suraksha Sanhita-BNSS) and other laws to adjudicate offences. High Courts and other higher courts that hold appellate authority are typically not considered criminal courts in the context of Section 6 (2) (f) of the Passports Act.
   
• In the case of Kulvir Singh v. Union of India, 2015 (147) DRJ 295, it was determined that a citizen's right to travel abroad is a fundamental right, and any restrictions imposed on this right should be understood objectively and within the context of public interest. This principle serves as a guiding standard when evaluating the conditions surrounding the issuance, impounding, suspension, and revocation of passports outlined in the Passports Act.
   
• According to Section 5(2) of the Passports Act, it is evident that a passport officer is empowered to carry out inquiries as needed concerning a passport application. However, this authority must be exercised in a reasonable and timely manner. Mere suspicions related to national security or vague concerns regarding potential criminal activity cannot justify the prolonged delay of passport application processing. This was established in the case of Rehana Ali v. Union of India and Ors., S.B. W.P. (C) No. 15/2013 (26.11.2015, Rajasthan High Court), where it was noted that a passport application was pending with the authority for nearly 29 months, which the High Court criticized.
   
• The passport authority is permitted to request additional information, documentation, or certifications deemed necessary for the appropriate handling of an application, as ruled in Regional Passport Officer v. Kokilaben, AIR 2009 Guj.
   
• Passport applications for issuance or renewal should not remain pending for extended periods, as such delays can infringe upon the fundamental rights of citizens. The passport officer cannot indefinitely delay the decision on issuing, renewing, or reissuing a passport or travel documents, as established in Anwarul Haque v. Union of India, AIR 2008 J&K 35.
   
• Suspicions regarding a citizen's nationality cannot serve as justification for passport denial. Authorities must reach a conclusive determination regarding the applicant's citizenship status, as established in Prabhleen Kaur v. Union of India, 03.10.2018, Delhi High Court.
   
• A passport can only be denied based on the grounds outlined in the Passports Act, as established in the case of Prabhleen Kaur v. Union of India, decided on October 3, 2018, by the Delhi High Court.
   
• A conviction for a crime involving moral turpitude and a prison sentence of two years serves as another basis for passport denial. An offence under the Prevention of Corruption Act qualifies as a crime involving moral turpitude, as determined in M. Natarajan v. The Regional Passport Officer, 2012 (4) CTC 709.
   
• A criminal case is deemed to be pending as soon as the court takes cognizance of the offence, as noted in Abhijit Sen v. Superintendent (Administration) Regional Passport Officer, 2004 (1) CHN 66.
• Simply registering or having an FIR pending does not invoke Section 6 (2) (f) or Section 10 (3) (e) of the Passports Act, as clarified in the case of Sarath v. Regional Passport Officer, dated 04.09.2018, Madras High Court, Madurai Branch.
   
• The filing of a final report or charge sheet by police under Section 173 of the CrPC (now Section 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023-BNSS) will not initiate criminal proceedings until the magistrate has taken cognizance of it. This principle was affirmed in the cases of Abhijit Sen v. Superintendent (Administration) Regional Passport Officer, 2004 (1) CHN 66, and Anand Tewari v. Union of India, 2014 (1) JCC 186.
   
• Furthermore, proceedings that escalate to a higher court during an investigation or before its completion are not governed by Section 6 (2) (f) of the Passports Act until a final report is submitted to the appropriate court and that court takes cognizance of the offence, as elaborated in W. Jaihar William v. State of Tamil Nadu, 2014 (8) MLJ 61.
   
• A magistrate can take cognizance of an offence and issue process following the receipt of a police report, and until that point, the magistrate acts solely as an overseer of the police investigation, as stated in Mathumari China Venkatareddy v. State of Andhra Pradesh, 1994 Cri. LJ 257 (A.P.).
   
• The landmark Supreme Court case Maneka Gandhi v. Union of India (1978) significantly broadened the interpretation of fundamental rights in India. In this case, the government revoked Maneka Gandhi's passport under the Passports Act, 1967, without providing justification or allowing her to present her case. Gandhi contended that this action violated her right to life and personal liberty as protected by Article 21 of the Constitution. The Supreme Court ruled that the right to travel abroad is inherent to personal liberty and must not be infringed upon arbitrarily. It emphasized that laws impacting fundamental rights must adhere to principles of reasonableness and natural justice, including the right to be heard. This ruling reinforced the interconnectedness of rights under Articles 14, 19, and 21.

Guidelines issued on 10th October 2019 (No. VI/401/1/5/2019) by the Ministry of External Affairs, PSP Division, address passport issuance for applicants with pending criminal cases, following the Delhi High Court's order in W.P. (CRL) No. 2844/2018:Kindly refer to Notification No. GSR 570(E) dated August 25, 1993, concerning the issuance of passports to applicants with ongoing criminal proceedings. These applications fall under the provisions of clause (f) of sub-section (2) of Section G of the Passports Act, 1967.

1. GSR 570(E) - Exercising the powers granted by clause (h) of Section 22 of the Passports Act, 1967 (15 of 1967), and superseding the notification issued by the Government of India in the Ministry of External Affairs No. GSR 298(E) dated April 17, 1976, the Central Government, believing it necessary in the public interest, exempted Indian citizens against whom criminal proceedings regarding an alleged offence are pending before a court in India, provided they present orders from the relevant court allowing them to travel abroad. This exemption is subject to the following conditions:
   1. The passport issued to each such citizen will be valid:
      1. For the duration specified in the order of the aforementioned court, if a specific period is set by the court for which the passport is to be issued, or
      2. If no duration is mentioned in the order for either the issuance of the passport or travel abroad, the passport will be valid for one year,
      3. If the order permits travel abroad for a period shorter than one year without specifying the passport's validity, the passport will be issued for one year,
      4. If the order allows travel abroad for more than one year, but does not mention the passport's validity, the passport will be valid for the duration of travel specified in the order.
   2. Any passport issued under clauses (a)(ii) and (a)(iii) above can be renewed for an additional year at the applicant's request, provided they have not travelled abroad during the period sanctioned by the court, and that the court's order remains in effect and unrevoked.
   3. Any passport issued in accordance with clause (a)(i) can only be renewed based on a new court order that specifies additional validity for the passport or a period for travel abroad.
   4. The citizen must provide a written undertaking to the passport-issuing authority assuring that they will appear before the concerned court if required, at any point while the issued passport remains valid.
       
2. It is important to note that passport applications may only be denied based on the grounds outlined in Section 6(2) of the Passports Act, 1967. According to Section 6(2)(i) of the Act, the passport authority is obliged to deny a passport or travel document to an applicant if criminal proceedings regarding an alleged offence by that applicant are pending in a court of law in India. GSR 570(E) dated August 25, 1993, was established to provide relief to applicants facing pending criminal cases, enabling them to obtain a passport for urgent travel needs with a short validity of one year or for the specific period defined by the court.
    
3. It has been observed that an increasing number of inquiries are being made regarding passport applications subject to Section 6(2)(f). Additionally, the Ministry has become aware of various complex issues related to the processing of these applications. In a recent case heard by the Hon'ble High Court of Delhi, W.P. (CRL) No. 2844/2018 /CRL. M.A 48674/2018, the court mandated the Ministry to issue guidelines that reiterate the procedure for handling such applications, stressing that they must be processed with utmost care and diligence.

The following guidelines should be followed when processing passport applications for those applicants who may have ongoing criminal proceedings in a court in India:

1. The provisions of GSR 570(E) must be strictly enforced in all cases. GSR 570(E) is a statutory notification and is therefore part of the Rules. It is important to note that according to Section 5(2) of the Passports Act, 1967, the passport authority must make a written decision on whether to issue or deny a passport, and may conduct any inquiries it deems necessary. Additionally, Section 7 of the Passports Act states that a passport or travel document may be issued for a shorter duration than the standard period if the passport authority, for reasons communicated in writing to the applicant, believes that a shorter validity is warranted. Rule 12 of the Passport Rules, 1980 specifies that an ordinary passport is valid for a period of 10 years, indicating that an ordinary passport cannot be issued for a duration exceeding 10 years.
    
2. Whenever an applicant submits a 'No Objection Certificate' (NOC) from a Court of Law in India, they should be advised that the undertaking as per GSR 570(E) must be thorough and include all pending criminal cases against them. The undertaking should also contain a clear note stating that if any false or incomplete information is provided by the applicant, their passport application may be rejected.
    
3. Current guidelines clearly state that these applications must be processed in pre-Police Verification (PV) mode. The "Pre-PV" requirement is essential for all applications submitted with GSR 570(E) to ensure that the applicant's undertaking aligns correctly with the criminal cases listed in the Police Verification Report (PVR). Therefore, these applications should not be accepted under T‹itkaa1, nor should they be transitioned to "post-PV" or "No-PV" modes without appropriate justification and written approval.
    
4. If an application is found to be incomplete or misleading, and the applicant has concealed details of other criminal cases, a Show Cause Notice should be issued to the applicant, and action should be taken against them according to Section 12 of the Passports Act, 1967. If it is discovered that an applicant obtained a passport through false information or by hiding important facts after the passport has been issued, the passport may be impounded or revoked in accordance with Section 10(3)(b) of the Passports Act, 1967, following the proper procedures.
    
5. In cases where the initial Police Verification (PV) is marked as 'Adverse', a secondary police verification may be initiated. This secondary PV should include a detailed letter requesting clarification about any pending criminal cases against the applicant and the current status of those cases. In addition to generating the secondary PV, passport officers may, if deemed necessary, request a discreet inquiry through the police authorities by submitting the court order provided by the applicant or even seek verification from other government agencies or departments, depending on the situation.
    
6. In cases where the secondary Police Verification is also 'Adverse', it is important to check if the details in the police report align with the undertaking provided by the applicant. It should be noted that the filing of FIRs and ongoing investigations do not fall under the scope of Section 6(2)(f). Criminal proceedings will only be deemed pending against an applicant if a case has been registered in a Court of law and the court has taken cognizance of it.
    
7. If the details in the police report align with those in the undertaking provided by the applicant, the 'No Objection Certificate' issued by a Court of law will take priority over any 'Adverse' report from the police. In these situations, the 'Adverse' report can be dismissed with the written consent of the Passport Officer.
    
8. If the information provided in the PVR and the application submitted by the applicant do not match, a notice may be sent to the applicant requesting clarification. The applicant will also be advised to provide details of any pending criminal cases and to submit an updated No Objection Certificate (NOC).
    
9. If an applicant has criminal proceedings pending in multiple courts, it is advisable for them to obtain a No Objection Certificate (NOC) from all relevant court(s). Typically, the Court Order will reference the cases against the applicant and the request made by them. This will be reviewed alongside the undertaking provided by the applicant, as well as any complaints or other court orders that may have been filed against them.
    
10. The provisions of Section 6(2) of the Passports Act, 1967, remain applicable to an applicant, except for the exemptions specified in GSR 570(E), which solely exempts the applicant from the stipulations of Section 6(2)(f). It is important to highlight this distinction.

Issuance of Passport on Pending Criminal Case:
In the case of Venkata Siva Kumar Yadhanapudi v. Union of India, 2024 SCC OnLine TS 402, dated 14-3-2024, the Telangana High Court ruled that the existence of a pending criminal case cannot serve as a valid reason to deny the renewal of a passport. The court has mandated the renewal of the passport for a duration of ten years, indicating that the actions taken by the passport authority did not align with the procedures outlined in the Passports Act of 1967, nor with the principles established by the Supreme Court in the case of Vangala Kasturi Rangacharyulu v. CBI, 2021 SCC OnLine SC 3549.

Consequently, the Court granted the writ petition and annulled the disputed order dated January 30, 2024, issued by the passport authority. The Court instructed the passport authority to review the petitioner's application dated January 25, 2024, and to issue suitable orders regarding the issuance of a passport valid for ten years, in line with Section 10 of the Act and Rule 12 of the 1980 Rules, without taking into account the ongoing criminal proceedings against the petitioner or the Gazette Notification.

In the case of Gurpreet Singh v. Union of India AIR 2008 (NOC) 2138 (P&H), it was determined that an entry in the passport indicating the pendency of a criminal case against the petitioner could not be removed even after his acquittal from the charges. However, it was noted that he could apply for a new passport.

Issuance of Passport on Adverse Police Verification Report:
In the case of Anwarul Haque v. Union of India AIR 2008 J&K 35, it was determined that the passport authority is not permitted to postpone their decision on a passport application merely due to a negative intelligence or police verification report. Furthermore, they cannot deny the application without considering the specific details presented in the report. An adversarial police verification report does not strip a citizen of their legal entitlement to obtain a passport.

It is the responsibility of the passport authority to evaluate the facts and background of the individual applying for the passport, as indicated by the intelligence agency's report, in order to decide whether the passport should be granted. The authority is not bound by the recommendations of the intelligence agency, allowing them the discretion to make a fair decision based on the applicant's circumstances.

In the legal case of Akanksha Amar Naik v. Government of India AIR 2007 (NOC) 726 (Bom.), it was concluded that the negative assessment provided by the authorities demonstrated a clear absence of careful and thorough consideration of the relevant factors. This oversight ultimately resulted in the determination that the decision to refuse the issuance of the passport was arbitrary in nature. As a result of these findings, the court decreed that this decision should be annulled and reconsidered.

Conclusion:
The refusal to issue a passport under Section 6(2) of the Passports Act, 1967, underscores the legal structure guiding passport issuance in the context of active criminal cases. Although a pending criminal matter may justify such denial, it must comply strictly with the Act's stipulations. Courts have consistently stressed that fundamental rights, including the right to travel abroad, should not be subject to arbitrary limitations.

Cases like Kulvir Singh v. Union of India reinforce that restrictions must be legally justified and serve the public interest. Additionally, the provision for issuing short-validity passports under GSR 570(E) helps balance the facilitation of travel with the need to address ongoing legal issues.

Judicial criticism of undue delays, as highlighted in cases like Rehana Ali v. Union of India, further emphasizes the necessity for timely and reasonable inquiries. Consequently, passport authorities must adhere to legal regulations, carry out prompt investigations, and refrain from making random decisions. Applicants with ongoing criminal cases may seek legal remedies to obtain passports, thereby protecting their rights while fulfilling their legal obligations. This framework strives to find an equilibrium between individual rights and public safety, safeguarding justice without compromising national security or sovereignty.

References:

• Tandon, A. (2022). Indian citizenship and immigration law. Niyogi Books.
• Dewan, V. K. (2010). Law of citizenship, foreigners & passports (4th ed.). Asia Law House.
• Government of India, Ministry of External Affairs, PSP Division. (2019, October 10). No. VI/401/1/5/2019. Patiala House Annexe, Tilak Marg, New Delhi.
• Simranjeet. (2024, April 4). Pendency of a criminal case cannot be a ground to refuse renewal of passport; Telangana HC directs renewal for a period of ten years. SCC Times.
   

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565