'Trials In Our Country Take Ages To Complete': Kerala High Court Frames Guidelines For Issuing Passports To Accused In Criminal Cases

In a significant ruling, the Kerala High Court on Thursday drew up a set of guidelines to be considered by criminal courts while granting permission for the issuance of passports to individuals involved in criminal proceedings.

Justice Bechu Kurian Thomas while disposing of a petition filed by a man who was awaiting issuance of a new passport for the past 5 years, observed:

"The grant of permission by the Magistrate enabling an accused to travel abroad will be of great significance, especially since it will be a process of balancing the fundamental right of a citizen to travel abroad and the need to ensure the presence of the accused during trial."

The Court further noted that it is important to lay down parameters so that the decision can be taken in an objective manner. 

"Many a time, the consideration results in subjective satisfaction of the Magistrate rather than the required objective satisfaction. To avoid subjectivity, it is necessary to lay down the parameters that can govern the grant of permission for future guidance." 

Factual Background:

The petitioner had lost his passport issued from Dubai while he was in Kerala. Although he immediately applied for a new passport, a case was registered against him for offences punishable under the Indian Penal Code and the Passport Act, 1967.

Thereafter, the petitioner was informed from the passport office that due to the adverse report on the pendency of the crime, the file for issuance of the passport was closed.

Almost five years later, he applied again for a new passport. The criminal case against him was still pending investigation even then.

Key Observations: 

The Court recalled the cardinal legal principle that an accused must be presumed innocent until proven guilty and that false prosecution can adversely affect citizens' future.

The Bench did not hesitate to comment on the delay in completion of criminal trials:

"This Court cannot also lose sight of the fact that criminal trials in our country take ages to complete, notwithstanding the efforts at reducing delay. Adding to all these, with the Covid-19 pandemic having halted the continuity of trials in many trial courts, further delay is a forgone conclusion and to say the least." 

As such, it was found imperative to lay down a set of guidelines to be followed while governing the grant of permission by the criminal courts for issuing passports to individuals involved in pending criminal proceedings. 

Guidelines:

The following are the criteria that decide if an individual should be issued with a passport while being involved in criminal proceedings:

(1)The stage of the criminal proceeding and the duration of time within which the trial may take place;

(2) The criminal antecedents and past conduct of the accused;

(3) The nature and gravity of the crime; offences under Statutes dealing with acts of terrorism and acts of smuggling should require a different consideration;

(4) In heinous crimes, if the court decides to grant permission,the period for which permission is granted can be limited;

(5) Chances of the accused fleeing or evading the trial in the case;

(6) Mode in which the presence of the accused can be ensured during trial, including stipulating conditions like providing the address/ change of address in the country of residence abroad, either with the Indian Consulate at the country of residence abroad or with the Court where the trial is pending;

(7) Since in cases where time is not fixed by the Magistrate while granting permission, the passport authorities are issuing passports only for one year, the period for which the accused can be permitted to travel can also be fixed by the Magistrate, while granting permission.

However, it was clarified that this was not an exhaustive list and that criminal courts may incorporate other reasonable safeguards to ensure the presence of the accused during the trial into the order granting permission if the circumstances warrant it.

Tracing the advancement of the laws governing the right to travel, the Court found it indubitable that the right to travel beyond the frontiers of our country is a facet of personal liberty under Article 21 of the Constitution of India.

Nevertheless, it added that however comprehensive the said liberty be, it is still subject to 'procedure established by law'.

After the Passport Act was enacted in 1967, a law came into existence which enabled denial merely on the ground of existence of a criminal proceeding.

However, the Government of India issued a notification, which is statutory in character, exempting citizens of India against whom criminal proceedings are pending before a criminal court from being denied passports on condition that the applicant produces orders from the court concerned permitting to depart from India.

The Court found that there was still lacuna about the parameters that govern the grant of no objection by criminal courts.

However, the Bench made it clear that it is for the legislation to fill the gaps in the existing system: 

"It is for the legislature to fill up the lacuna by recourse to its rulemaking power or through proper amendments, such amendments have unfortunately not been forthcoming. It is essential that till then there must be some yardstick to govern the grant of such no objections by criminal courts as otherwise, there is a possibility of the grant of permission turning into a subjective satisfaction rather than an objective one."

Advocate Saju S Nair appeared for the petitioner and the Central Government Counsel Jaishankar V Nair represented the respondents. 

Case Title: Thadevoose Sebastian v. Regional Passport Office & Ors.

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