Passport May Be Issued If 5 Years Have Elapsed After Conviction, Even If Appeal Is Pending: Punjab & Haryana High Court

The Punjab & Haryana High Court has held that the bar for not issuing a passport will not apply to the person convicted of an offence for not less than 2 years, after the passing of 5 years of conviction, even if the appeal is pending.

“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,” said Justice Jagmohan Bansal.

The Court was hearing a batch of five pleas filed by the convicts who were denied the issuance or renewal of passport even after elapsing of five years of conviction, since their appeal is pending.

According to Section 6 of Passport Act, 1967 the passport authority can refuse to issue passport on the grounds:

(2)(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;

(2)(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;

Perusing the Section, the Court explained that, “in the clause (e), the legislature, as per its wisdom has enjoined three pre-requisites namely:

(i) conviction should be within 5 years preceding the date of application,

(ii) conviction should be for any offence involving moral turpitude and

(iii) 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,”stated the Court.

It has been noticed that authorities while denying passport consider period of conviction and period spent from the date of conviction, however, question of involvement of moral turpitude in the offence is not examined, it added. “The authorities must consider this aspect apart from other issues," the judge said further.

The Court referred to Rajasthan High Court’s judgement in the case of Nilesh Heda v. UOI and others wherein it was held that, “High Court for the purpose of Section 6(2)(f) of the Act cannot be called as ‘criminal court’, thus, in case of pendency of appeal before High Court, Section 6(2)(f) of the Act cannot be invoked.”

“This court finds itself in complete agreement with reasons and findings recorded by Rajasthan High Court and hold that High Court is not a criminal court as contemplated under clause (f) of Section 6(2) of 1967 Act, thus, clause (f) would not be applicable where appeal is pending in High Court,” observed the bench.

It further said that from the perusal of 1993 notification and 2019 instructions, it transpires that Government has not contemplated pendency of appeal before lower appellate court or high court. “The respondent is wrongly relying upon aforesaid notification to argue that appeal is continuation of original criminal proceedings, thus, procedure prescribed under aforesaid notification would be strictly applicable to every case where appeal is pending,” added the Court.

Further, from the reading of different clauses of Section 6(2) and judicial precedents, it said, “beyond the pale of doubt, stares that scope, ambit and applicability of clause (e) and (f) is altogether different. There is clear dichotomy between both the clauses. It said, thus, 1993 notification and 2019 instructions are not applicable to pending appeals.”

Justice Bansal further clarified that Government Notification dated 25.8.1993 is applicable to criminal proceedings pending before trial court and as per instructions issued in 2019, “mere registration of FIR is not sufficient whereas a case should be registered before Court and Court must have taken cognizance.”

In the light of the above it was concluded that, “The Petitioner had filed application seeking passport prior to expiry of 5 years from the date of conviction. Period of 5 years from the date of conviction expired on 08.10.2018. The Respondent No. 3 is directed to decide application of the petitioner within 8 weeks from the date of fresh application, if any filed by the petitioner.”

“To minimize litigation relating to passport issues, before parting with this judgment, this court would hasten to direct all passport authorities falling within jurisdiction of this court to consider observations and findings of this court while processing pending and subsequent applications,” the Court added.

Case Title: Mohan Lal @ Mohan v. UOI and all connected matters

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