Husband disclosing 498a FIR In passport application to be granted passport !!P&H HC
Husband disclosing 498a FIR In passport application to be granted passport !!P&H HC
Punjab-Haryana High Court
Sanjeev Sharma vs Regional Passport Officer And … on 1 April, 2013
CWP No.19361 of 2012 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.19361 of 2012 (O&M)
Date of Decision: 01.04.2013
Sanjeev Sharma
….. Petitioner
Versus
Regional Passport Officer and others
….. Respondents
CORAM:- HON’BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Sanjeev Sharma, petitioner in person.
Mr. Karminder Singh, Advocate,
for respondent No.1.
Mr. Deepak Jindal, DAG, Haryana.
Mr. Dinesh Arora, Advocate,
for respondent Nos.4 to 8.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The petitioner has been issued show cause notice to explain why he has concealed material facts while applying for passport. Further directions have been issued by the Regional Passport Officer, Chandigarh to the petitioner to surrender the passport. The passport application was submitted online. On receipt of show cause, the petitioner asked for a photocopy of his application form under the Right to Information Act, 2005.
The facts in brief: the petitioner has a matrimonial dispute with his wife. He appears in person and submits that he lived and worked in Italy CWP No.19361 of 2012 (O&M) for his livelihood and that of his family and sadly had to return to India because an FIR No.252 dated 20.12.2010 was been registered against him for dowry offences by his wife under Sections 498-A, 323/406/506 & 34 IPC at Police Station Ladwa, District Kurukshetra, Haryana. He submits that he has two minor children who he is looking after without any help from his spouse following the separation between the two.
The present controversy: The Passport Officer in the show cause says that the petitioner has not disclosed in his passport application form the pendency of the First Information Report against him which is pending trial with the final report/challan presented in the trial court. This Court by interim order dated 24.01.2013 called upon Mr. Karminder Singh, learned counsel appearing for the respondent – Regional Passport Office to produce the original record, including the application of the petitioner in which declarations have been made. Learned counsel was also asked to produce the record containing the police report on the file of this case. The formal written statement in response to this petition was not found sufficient to answer the prayer. All that the written statement said was that the petitioner had applied for grant of passport bearing file dated 21.06.2011 in lieu of old passport dated 17.10.2005 valid up to 16.10.2015 issued from the Indian embassy at Milan, Italy.
It has been stated in paragraph 12 of the written statement filed in response to the summons that the petitioner had mentioned in his passport application form that previously he resided in Panipat. Therefore, the quest for his personal particulars in the form submitted were referred to both the Senior Superintendent of Police at Karnal and Panipat. The SSP, Karnal has CWP No.19361 of 2012 (O&M) sent a clear police verification report. However, SSP, Panipat by his communication dated 24.10.2011 reported that the aforesaid case in FIR No.252 dated 20.12.2010 was pending in the trial court. On the basis of this adverse police report the show cause notice dated 21.11.2011 was issued to the petitioner with reminders on 17.09.2012 and 12.11.2012 calling upon him to surrender his passport or furnish a copy of the Court judgment in the abovesaid case. The petitioner neither surrendered the passport nor furnished the copy of the Court order, therefore, his passport was impounded under Section 6 of the Passport Act, 1967.
Though the interim order dated 24.01.2013 has not been strictly complied with in terms of placing the material sought on record of this case but the application form has been produced for the perusal of this Court. In the application form, the petitioner has mentioned the factum of the First Information Report without doubt. It cannot, therefore, be said that the petitioner is guilty of suppression of material fact or having supplied false information to obtain a passport. The impugned order dated 21.11.2011 reads as follows:-
“To, Dated: Nov 21, 2011 SANJEEV SHARMA, HOUSE NO.- VPO, BAROTA, DISTRICT – KARNAL, STATE-
HARYANA, COUNTRY-INDIA, PINCODE-
132001, TEL. NO.-
Subject: Grant of Passport facilities to Shri SANJEEV SHARMA Sir, This is in reference to your application for grant of passport facilities in your favour applied vide file number CH1070285986211, dated 07/10/2011. On police veritification it has been reported that a case FIR No.252 DT.29.12.2010 U/S 323/498-A/506/34 IPC PS;LADWA DISTT.KURUKSHETRA registered against you which fact you have not CWP No.19361 of 2012 (O&M) disclosed in your application for passport.
You will be aware that suppression of material fact is an offence under Passport Act, 1967. You are, therefore, directed to explain under which circumstances you have not disclosed above material fact in your application for passport and why action should not be initiated against you under Passport Act, 1967.
You are, hereby, also directed to surrender passport number J8505721 dated 07/10/2011 to this office immediately.
Yours Sincerely, For Regional Passport Office, Chandigarh”
It is apparent that the reason given in the impugned order is fallacious. It is well settled that if the reason given in support of an administrative order is found to be wrong or incorrect there is nothing which can save it. It must fall. This is unlike a judicial order in appeal or revision where the Appellate Court etc. for different reasons may uphold the conclusion or set it aside.
A passport is a fundamental right as declared by the Supreme Court in Maneka Gandhi vs. Union of India, AIR 1978 SC 597 and can be denied only by due process and for reasons germane for non-grant. I have read the contents of the FIR No.252 dated 20.12.2010 a copy of which is placed at Annexure P-2. It is a wife’s complaint for dowry, a story repeated under 498-A.
I have heard Mr. Dinesh Arora, learned counsel appearing for respondent Nos.4 to 8, wife and maternal family, who see-sawed between the submission that his clients have been unnecessarily dragged into this litigation and should be deleted from the array of parties and on the other hand would faintly argue that if passport is given to the petitioner he would abscond from the law. He does not deny that the minor children are not being looked after by the mother but are being brought up by the petitioner CWP No.19361 of 2012 (O&M) in whose lot their caring has fallen. If this is the truth then I can only say that the petitioner appearing in person is an unfortunate man and the FIR is aimed at depriving him of his right to travel and earn his livelihood for himself and his present family as he had done in the past in Italy. Mr. Arora admits that there is no order of the trial Court in the FIR denying use of passport to travel. In Suresh Nanda vs. Central Bureau of Investigation, (2008) 3 SCC 674, the Supreme Court has protected the fundamental right to travel by holding that even the trial Court had got no jurisdiction to impound a passport, the trial Court is empowered to deal with a passport in its discretion to ensure that in the event of conviction, the accused is present to hear the sentence and surrender to the law. I have no doubt that the impugned order is more than perverse since it has been passed for the wrong reason and, therefore, cannot be sustained. This Court cannot also loose sight of the fact that the impugned order records a dileberately false reason, not forthcoming from the original application, where pendency of FIR is duly mentioned and consequently the further consequential order dated 30.04.2012 based on the impugned order dated 21.11.2011 calling upon the petitioner to surrender his passport by treating the application as a final reminder is entirely perverse. The petitioner has been forced to approach this Court unnecessarily. He is not a common criminal. He is a creature of circumstances which alone should not deprive him of such a valuable right especially when he has to single handedly look after his minor children.
I, therefore, have no hesitation to allow this writ petition and quash the impugned order dated 21.11.2011 (P-8) and the consequential CWP No.19361 of 2012 (O&M) order dated 30.04.2012 (P-9) issued by the Regional Passport Office, Chandigarh with costs quantified at Rs.20,000/- to be paid by the official respondents to the petitioner by way of a draft within 30 days of the date of receipt of certified copy of this order. The cost would be borne by the Ministry of External Affairs, New Delhi.
Consequently, a mandamus would fly to the official respondents commanding them to issue a valid Indian passport to the petitioner within 14 days of supply of certified copy of this order or receipt thereof whichever is earlier.
Hithertofore, the learned trial court seized of the proceedings in FIR No.252 dated 20.12.2010 registered under Sections 498-A, 323/406/506 & 34 IPC at Police Station Ladwa, District Kurukshetra, Haryana would have jurisdiction to pass appropriate orders with respect to the passport and travel aboard.
(RAJIV NARAIN RAINA) JUDGE 01.04.2013 manju
https://indiankanoon.org/doc/130221839/