Under Trial Must Obtain Permission From Court To Travel Abroad Prior To Applying For Issue/ Re-Issue/ Renewal Of Passport: Allahabad HC

The Lucknow Bench of the Allahabad High Court has held that an under trail must obtain permission for travelling abroad from the Court concerned prior to applying for issue, re-issue or renewal of passport before the passport authority.

The bench of Justice Rajan Roy and Justice Om Prakash Shukla held

“A plain reading of the provisions of Passport Act, 1967 and the beneficial Notification issued in terms of Section 22 of the Act, 1967 leads to the sole logical conclusion that in all cases wherein criminal proceedings are pending and have been denied the issuance of passport by the operation of Section 6 (2) (f) of the Passport Act, 1967, the under-trial, as a condition precedent has to first seek permission or NOC from the Court concerned, wherein the trial is pending, to travel abroad or depart, for which essentially a passport is required and then only as a condition subsequent apply to the passport authority for issuance of the passport for a particular period as mentioned in the permission order itself or for the period as mentioned in GSR 570(E) dated 25th of August, 1993.”

Section 6(2)(f) of the Passport Act, 1967 provides that the Passport Authority shall refuse to issue passport to a citizen against whom case for any offence is pending before a criminal court in India.

Section 22 of the Passport Act empowers the Central Government to issue notifications exempting person or class of persons from the applicability of the provisions of the Act. It is further empowered to cancel any such exemption notification issued by it.

Exercising powers under Section 22, the Notification GSR 570(E) dated 25th of August, 1993 was issued by the Central Government exempting any citizen against whom criminal cases are pending from the operation of Section 6(2)(f) if they produce orders from the Court concerned permitting them to travel abroad. It also laid down the modalities for grant of such passport like the duration for which passport can be issued, etc.

Case Background

Petitioner, a practising advocate of the High Court, had applied for a fresh passport. The police submitted a report regarding pendency of two criminal cases against him. Petitioner pleaded that in one of the criminal cases, he did not need permission of the Trial Court in light of the judgment of the coordinate bench in Umapati Vs. Union of India and 3 others. Whereas regarding the other criminal case, he pleaded that Final Report had been forwarded to the Court concerned.

The Passport Authority informed the petitioner that verification of the aforesaid was required. Since no passport was issued to the petitioner, he approached the High Court.

Counsel for petitioner argued that the Trial Court, by relying on the judgment in Umapati, had rejected grant of NOC stating that prior permission of the Court was not required. Accordingly, it was argued that the passport ought to have been issued in light of Notification of the Ministry of External Affairs, New Delhi dated 25.08.1993.

Per contra, counsel for Union of India argued that the judgment in Umapati did not take note of earlier judgments of the High Court. He argued that in Salim Kumar vs. Union of India & Ors., the Allahabad High Court had directed the petitioner, therein, to seek permission of the trial Court for travelling abroad and based on this permission, the issuance of passport was to be considered.

Reliance was placed on similar judgments of the Allahabad High Court in Shiv Shankar vs. Union of India & Ors. and Smt. Rashmi Kapoor vs. Union of India & Ors. where the Notification dated 25.08.1993, 10.10.2019 and provisions of the Passport Act, 1967 were considered and modalities were laid down for issuance of passport. It was argued that the same were not considered by the Court in Umapati.

High Court Verdict

The Court held that the word 'shall' in Section 6(2)(f) of the Passport Act makes it mandatory upon the Passport Authority to reject the application for issuance of passport when a criminal case is pending against the applicant.

“Section 6 (2) (f) is a reasonable restriction imposed by law within the framework of Article 19 (f)* of the Constitution of India and debars issuance of passport where proceedings in respect of an offence alleged to have been committed by the applicant is pending before a criminal Court in India.”

However, it light of the Section22 of the Passport Act read with Notification GSR 570(E) dated 25th of August, 1993, the Court held that the bar in Section 6(2)(f) is not absolute. It held that the requirement for under-trial to obtain NOC or permission of the Court was a statutory requirement.

The Court observed that Ministry of External Affairs published Office Memorandum, bearing No. VI/401/I/5/2019 dated 10.10.2019 which cause confusion in the procedure to be followed by the authorities. The Office Memorandum dated 10.10.2019 provides that all pending criminal cases are to be disclosed, the permission from Court is to be taken to travel abroad and then police verification shall be conducted subject to which passport may be issued, re-issued or renewed. It was observed that the Office Memorandum is an extension of the Notification dated 25th of August, 1993 as it mentions that the rules prescribed therein shall be strictly adhered to.

Since the aforesaid Office Memorandum was being misused by undertrials to leave the country, the Ministry of external Affairs issued Office Memorandum (OM) dated 06.12.2024 stating that no statutory provision existed for obtaining NOC for issuance/ renewal of passport. It stated that only permission could be sought from the Court concerned for travelling abroad.

“It goes without saying that as per Official Gazette [GSR 570 (E) dated 25.08.1993], relaxation under Section 6 (2) (f) of the Passport Act, 1967 applies to only those persons who produce orders from the Court concerned permitting them to depart India, otherwise, the rigour of refusing issuance of passport would follow consequently.”

The Court held that the Trial Court could have granted the permission or rejected the same but not on grounds that no such permission is required to be given by the Trial Court. Accordingly, the writ petition was allowed and the application before the Trial Court stood revived.

Case Title: Mohd. Talha v. Uoi Thru. Its Secy. Ministry Of External Affairs New Delhi And 2 Others

Counsel for Petitioner : Arshad Jameel,Mohd Amir Shazad,Mohd. Salman

Counsel for Respondent: S.B. Pandey, Senior Advocate, Varun Pandey

*Author's Note: Article 19(1)(f) was right to property which has been omitted by the 44^th Amendment to the Constitution of India.

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