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Allahabad High Court overturns passport impoundment order

The Lucknow Bench of the Allahabad High Court while allowing the petition observed that Section 10 (3) (e) of the Passports Act, 1967 provides that the passport authority may impound or cause to be impounded a passport if the proceedings in respect of an offence alleged to have been committed by the holder of the passport are pending before the criminal court in India.

The Division Bench of Justice Shekhar B Saraf and Justice Manjive Shukla passed this order while hearing a petition filed by Mohammad Umar.

Petitioner through the petition has challenged the communication dated 30.05.2023 issued by the Regional Passport Officer, Vipin Khand, Gomti Nagar, Lucknow whereby he has been informed that decision has been taken to impound the passport issued in his favour on 20.08.2014, under Section 10 (3) (e) of the Passports Act, 1967 on the ground of pending criminal case.

The Facts of the case are that pursuant to petitioner’s application, Passport was issued to him on 20.08.2014. The said passport is valid up to 19.08.2024. The petitioner on the basis of the aforesaid passport was residing in the Kingdom of Saudi Arabia and was doing a private job.

Petitioner’s wife Fatima Jahara has lodged an F.I.R against the petitioner which has been registered as Case under Sections 498-A, 323, 406, 504, 506 I.P.C, Section 3/4 Dowry Prohibition Act and Section 3/4 of Muslim Women (Protection of Rights of Marriage) Act, 2019 at Police Station Mahila Thana, District Ambedkar Nagar.

The investigating officer after completing his investigation in the aforesaid crime had submitted a charge-sheet on 27.08.2023 before the competent court. The petitioner and other accused of the aforesaid crime have filed an application under Section 482 Cr.P.C before the Court at Lucknow bearing Case and the Court by order dated 29.05.2024 has stayed the proceedings of the criminal case pending before the Court concerned.

Counsel appearing for the petitioner has submitted that Section 10 (3) (e) of the Passports Act, 1967 provides that the passport authority may impound or cause to be impounded or revoked a passport or travel document if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before criminal court in India.

He further submitted that under Section 10 (5) of the Passports Act, 1967 provides that where the passport authority makes an order impounding a passport or travel document under sub-section 3 of Section 10 of the Passports Act, 1967, it shall record in writing a brief statement of the reasons of the making such order and furnish it to the holder of the passport.

Counsel appearing for the petitioner has argued that the legislature while enacting Section 3 of the Passports Act, 1967 had conferred discretion to the passport authority that in the case of pending criminal proceedings against a passport holder, he may impound the passport.

He further argued that the legislature in Section 10 (3) had deliberately used word ‘may’ therefore intention of the legislature is very clear that a passport officer may impound the passport if criminal proceedings are pending against a passport holder but that does not mean that the passport officer is required to impound the passport of a person in every case where the criminal proceedings are pending against the said person.

The passport officer as per the mandate of the legislature under Section 10 (3) (e) is required to consider each and every case on its own facts and thereafter by recording reasons of a possible misuse of the passport for avoiding presence of the passport holder before the court trying the offence or possibility of delay in conclusion of the criminal proceedings, can impound the passport.

Per contra, counsel appearing for the respondents has argued that the passport officer is empowered to impound passport of a person under Section 10 (3) (e) of the Passports Act, 1967 on the ground of pending criminal proceedings against him and therefore the passport officer while taking decision for impounding petitioner’s passport under Section 10 (3) (e) of the Passports Act, 1967 in view of the pending criminal case against the petitioner in the competent court has acted strictly in accordance with law.

He further submitted that in view of the criminal case pending against the petitioner in the competent court, interference may not be shown by the Court in the impugned communication dated 30.05.2023.

The Court observed that,

We find that the legislature under Section 10 (3) (e) of the Passports Act, 1967 had deliberately used word ‘may’ meaning thereby that in the eventualities enumerated under Section 3 of the Passports Act, 1967 of the passport officer by recording reasons can impound passport but it is not necessary that in every case falling under Section 3 the passport officer is mandatorily required to impound the passport.

The legislature under Section 10 (3) (e) has given power/ discretion to the passport authority that if he is satisfied then he can impound the passport of a person on the ground of pending proceedings in relation to an offence in the criminal court, therefore prior to passing the order of impounding passport, the passport officer after considering the facts and circumstances of each case has to record reasons to arrive at a conclusion that due to pending criminal proceedings in a criminal court, the passport holder may misuse the passport for avoiding his appearance before the court and can delay the conclusion of the proceedings.

We find that a criminal case relating to a matrimonial discord is pending against the petitioner in the criminal court and proceedings of the said case have been stayed by the High Court and mediation proceedings in between the parties are in process.

“The passport officer in the matter has taken decision to impound petitioner’s passport under Section 10 (3) (e) of the Passports Act, 1967 only on the ground that proceedings related to an offence are pending against the petitioner before criminal court but he has not considered the facts of the criminal case and has also not recorded reasons to arrive at a conclusion that petitioner may misuse his passport for avoiding his presence before the criminal court and also for delaying the conclusion of the criminal proceedings and therefore it is necessary to impound his passport under Section 10 (3) (e) of the Passports Act, 1967.

More so we find that Section 10 (5) of the Passports Act, 1967 mandates the passport authority to give brief reasons for passing the order for impounding of the passport but in the case impugned communication dated 30.05.2023 does not disclose that the passport authority has made any consideration of the facts of the case and has recorded reasons. Ergo, the impugned decision for impounding the petitioner’s passport contained in the impugned order dated 30.05.2023 cannot be sustained in the eyes of law”, the Court further observed while allowing the petition.

“The impugned decision of impounding the petitioner’s passport contained in impugned order dated 30.05.2023 is quashed. The Respondent No 2 is directed to reconsider the entire matter, grant an opportunity of hearing to the petitioner and thereafter pass a fresh order within a period of six weeks from the date of service of a copy of this order”, the Court ordered.

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