Case Law Details

Case Name : Citizens Legal Right Association Vs Union of India (Kerala High Court)
Appeal Number : W.P. (C) No. 7945 of 2018
Date of Judgement/Order : 02/06/2020
Related Assessment Year :
Courts : All High Courts (6001) Kerala High Court (330)

Citizens Legal Right Association Vs Union of India (Kerala High Court)

Passport authorities under the Passports Act, 1967 are not vested with any power under Section 12 of the Act 1967, to impose any fine and it is a matter affecting the public. That apart, imposition of fine so made, which is an undisputed fact, without authority of law is a clear interference with the protection of life and personal liberty guaranteed under Article 21 of the Constitution of India, since it prohibits deprivation of life and personal liberty, except in accordance with the procedure established by law. Thinking, and assimilating the situation so, exercise of power is nothing short of transgression of the fundamental right guaranteed under Article 21 of the Constitution of India.

FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT

This is a public interest litigation filed by an organisation registered apparently under the provisions of the Travancore – Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, and one of its members. The issues raised arise under the Passports Act, 1967. The poignant question raised is whether an authority under the Passports Act, 1967, has any power to impose penalty/fine invoking the powers under Section 12 of the Act 1967. It is submitted by the petitioners that as per relevant provisions of the Passports Act, 1967, a passport authority defined under Section 2(c) of the Act has only delegated powers to issue passport under Section 5(2)(a) or reject an incomplete passport application under Section 5(2)(c) or refuse a passport under Section 6(2) or restrict the validity under Section 7(b) or impound/revoke a passport under Section 10(3) of the said Act, and not to impose any penalty.

2. The case projected by the petitioners is that there is no provision empowering any officer to impose pecuniary penalty under the Act 1967, even though Section 12 of the Act prescribes offences and penalties, and the manner in which the power to be discharged, in accordance with the adjudicatory mechanism prescribed thereunder. According to the petitioners, even without the power for imposing any fine in violation of the provisions of Sections 5, 6, 7 and 10, the fine is being imposed by the authorities which is arbitrary and illegal. It is also pointed out that the offences and penalties under Section 12 of the Act 1967 are criminal in nature and a passport authority is not empowered to launch a criminal investigation against the passport applicants/holders who allegedly commit/committed offences under Section 12 of the Act. That apart, as per Section 15 of the Act 1967, the sanction for prosecution for any offence under the Act 1967 can only be given by the Government of India or any authority authorised by the Government of India. It is pointed out that the said power has been delegated to the State Governments as per GSR 662(E) dated 1.12.1979.

3. Therefore, the sum and substance of the contention put forth by the petitioners is that the legal requirement under Section 15 makes it vivid and explicit that the passport authority is not empowered to initiate any prosecution under Section 12(1)(b). So also, it is submitted that the High Court of Gujarat as well as the High Court of Delhi had occasion to consider the issue and held that the authority under the Passports Act invoking Section 12 of the Act 1967 has no power to impose Petitioners have also produced various documents to establish that the Government of India has understood the issue in its proper perspective and it is accordingly that Ext.P11 Memorandum dated 16.12.2015 is issued, wherein it is stated that the Ministry intends to review and to amend the Passports Act, 1967 and Rules made thereunder, in the wake of the judgment of the High Court of Delhi dated 12.4.2013 in W.P. (C)No.5818 of 2011. Therefore, it is ordered that “It is of the considered view of the Department of Legal Affairs not to file an appeal against the impugned order dated 12/04/2013 but to amend the Passports Act, 1967 to the extent to incorporate the provision as regards institution of adjudicating authority in the Act to exercise the power of imposing the pecuniary penalty on the violators of the Passports Act, 1967 so that the power to levy as well as collect the pecuniary penalty in terms of Section 12 of the Act could be exercised by the passport authority itself”. So much so, as per the Office Memorandum, suggestions were sought from the passport issuing authorities with regard to the amendment of the Passports Act, 1967. A time limit is also prescribed thereunder for the suggestions/comments as required under the memorandum.

4. A detailed counter affidavit is filed by the Union of India and its officials refuting the averments, claims and demands raised by the petitioners. Among other contentions it is submitted that Section 12 of the Passports Act speaks about offences and penalties but does not specify the adjudicating authorities. However, it does not exclude the Government/passport authority from taking decisions regarding levying penalties. That apart, it is submitted that levying penalty is just one among the many steps involved in processing applications as per Section 5 or 7 or 10 of the Passports Act, 1967 and it cannot be viewed as a stand-alone procedure. Accordingly, the case put forth by the respondents is that a penalty needs to be imposed on such applicants for suppressing such material facts from the purview of the passport authority, while submitting the application for issuance of passport. Therefore, the penalty is used as a deterrent against such deliberate suppression of information and if the applicant is not satisfied with the penalty imposed, the applicant is at liberty to prefer an appeal to the Government of India as prescribed under the statute. It is also pointed out that Section 12 of the Passports Act, 1967 deals with offences of varying degrees from suppression of personal information such as spouse name, marital status, date of birth, address details, etc. for the purpose of impersonation and forgery, and therefore, initiation of prosecution in all such cases is not feasible due to the large number of applications received at the Passport offices. It is also submitted that most of the cases registered are compoundable in nature by levying penalty and if the issue is left unchecked, such suppression would affect the quality of services and denigrate the passport issuance system and therefore seeks dismissal of the writ petition.

5. A reply affidavit is filed by the petitioners reiterating the stand adopted and also producing an order issued by the Ministry of External Affairs, Government of India dated 31.10.2016, addressed to the Passport Officer, Passport Office, Surat, whereby the Regional Passport Officer, Surat was requested/advised to stop the practice of levying penalty of Rs.5,000/- for incomplete applications treating it as a case of suppression of material information immediately and the application fee was directed to be refunded to the applicants in terms of the statutory provisions of Rule 10(1) of the Passports Rules, 1980. It is also stated thereunder that the Passport Officer, Surat has adopted a wrong practice by imposing a pecuniary penalty on incomplete applications as there is no such provision existing in the Passports Act, 1967.

6. We have heard learned counsel for the petitioners and the learned Central Government Counsel and perused the pleadings and the documents on record.

7. The subject issue revolves around Sections 3, 5, 6 and 10 read with Section 12 of the Passports Act, They read thus:

3. Passport or travel document for departure from India.- No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document.

Explanation.- For the purposes of this section,-

(a) “passport” includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920) in respect of the class of passports to which it belongs;0

(b) “travel document” includes a travel document which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed.

5. Applications for passports, travel documents, etc., and orders thereon.- (1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by Such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents.

Explanation.- In this section, “named foreign country” means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf.

(1-A) An application for the issue of-

(i) a passport under this Act for visiting a named foreign country; or

(ii) a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section, may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed.

(1-B) Every application under this section shall be in such form and contain such particulars as may be prescribed.

(2) On receipt of an application under this section, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,-

(a) issue the passport or travel documents with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or

(b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or

(c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement.

(3) Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy.

6. Refusal of passports, travel documents, etc.- (1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and no other ground, namely: –

(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;

(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;

(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;

(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.

(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely: –

(a) that the applicant is not a citizen of India;

(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India;

(c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India;

(d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;

(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;

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

(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;

(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;

(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public

10. Variation, impounding and revocation of passports and travel documents.-

(1) The passport authority may, having regard to the provisions of sub-section (1) of section 6 or any notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice.

(2) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescribed conditions) of the passport or travel document.

(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,-

(a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;

(b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf;

Provided that if the holder of such passport obtains another passport the passport authority shall also impound or cause to be impounded or revoke such other passport

(c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;

(d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, 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;

(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India.

(f) if any of the conditions of the passport or travel document has been contravened;

(g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same;

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.

(4) The passport authority may also revoke a passport or travel document on the application of the holder thereof.

(5) Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel document under sub-section (1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India. friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy.

(6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority.

(7) A court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document: Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void.

(8) An order of revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.

(9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, surrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation.

12. Offences and penalties.- (1) Whoever-

(a) contravenes the provisions of section 3; or

(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or

(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or

(d) knowingly uses a passport or travel document issued to another person; or

(e) knowingly allows another person to use a passport or travel document issued to him,

shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five thousand rupees or with both.

(1-A) Whoever, not being a citizen of India,-

(a) makes an application for a passport or obtains a passport by suppressing information about in nationality, or

(b) holds a forged passport or any travel document,

shall be punishable with imprisonment for a term which shall not be less than one year but may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees or with both.

(2) Whoever abets any offence punishable under sub- section (1) or sub-section (1A) shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence.

(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.

(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter ”

8. The contention put forth by the learned counsel for the petitioners is that even if there is any violation of the provisions of the Act 1967 and Rules thereto, there is no power vested with any of the passport authorities under the Act 1967, to impose penalty. On the other hand, learned Central Government Counsel submitted that it is not possible to launch prosecution in each and every case, since the Regional Passport Authorities would have to handle thousands and thousands of passport applications and launching prosecution is a time consuming process and therefore, if the officers are not permitted to impose penalty in contemplation of Section 12 of the Act 1967, the passport authority would find it difficult to maintain the object and intend of the parliament to regulate the issuance of passport and travel documents.

9. Taking into account the rival submissions made across the Bar, our endeavour is to find out the legal purport of Section 12 of the Act 1967 extracted above. On a reading of Section 12(1), it is clear that offences and penalties are prescribed for contravention of the provisions of Section 3 or for the reasons enumerated thereunder, which shall be punishable with imprisonment for a term prescribed thereunder or with fine prescribed thereunder or with both. Therefore, it is evident from the provisions that in the event of any person found guilty, he is liable to be punished with an imprisonment for a term prescribed thereunder or in the alternative to impose fine prescribed thereunder or with both. Therefore, on a deeper analysis of the provision, it is amply clear that the passport issuing authority or any of the authorities under the Act, 1967 are given powers under the Passports Act, 1967 or Rules framed thereunder, to initiate prosecution for the contravention of the provisions of the Passports Act, 1967. A reading of the provision further shows  that, the power to punish with imprisonment is conferred only to the Magistrates as provided under the Code of Criminal Procedure. Fine as an alternative to imprisonment on finding guilty, can only be imposed by the competent Magistrate who adjudicates the issue on the basis of any complaint filed by the passport authority.

10. Section 13(1) of the Act 1967 deals with power to arrest, which stipulates that any officer of customs empowered by a general or special order of the Central Government in this behalf and any officer of police or emigration officer not below the rank of a Sub-Inspector may arrest, without warrant, any person against whom a reasonable suspicion exists that he has committed any offence punishable under Section 12 and shall, as soon as may be, inform him of the grounds of such arrest. Sub-section (2) makes it imperative that every officer making an arrest under this Section shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in charge of the nearest police station and thereupon the provisions of Section 57 of the Code of Criminal Procedure, 1973 shall so far as may apply in the case of any such arrest. Therefore, it is so apparent that the power conferred on the passport authority is limited to the extent as specified above. In this regard, Section 26 of the Code of Criminal Procedure dealing with power of courts, and courts by which offences are triable is relevant, which reads thus:

“26. Courts by which offences are triable

Subject to the other provisions of this Code,-

(a) any offence under the Indian Penal Code (45 of 1860), may be tried by-

(i) the High Court, or

(ii) the Court of Session, or

(iii) any other Court by which such offence is shown in the First Schedule to be triable;

PROVIDED that any offence under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code (45 of 1860), shall be tried as far as practicable by a Court presided over by a woman;

(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no court is so mentioned, may be tried by-

(i) the High Court, or

(ii) any other Court by which such offence is shown in the First Schedule to be ”

According to us, nothing more is required to arrive at the conclusion that the passport authority is not vested with any powers to impose punishment under Section 12 of the Act 1967. In fact, the Government  of India has understood the legal position and accordingly Ext.P11 memorandum dated 16.12.2015 has been issued to all the passport issuing authorities in India informing that the Government of India intends to amend the Act, 1967, in the wake of the judgment of the Delhi High Court in W.P.(C) No. 5818 of 2011 dated 12.4.2013. The Ministry of External Affairs has, therefore, incorporated the following in the said communication:

“2. The Order of the Hon’ble High Court has been examined in the Ministry in consultation with the Ministry of Law & Justice. It is of the considered view of the Department of Legal Affairs not to file an appeal against the impugned order dated 12/04/2013 but to amend the Passports Act, 1967 to the extent to incorporate the provision as regards institution of adjudicating authority in the Act to exercise the power of imposing the pecuniary penalty on the violators of the Passports Act, 1967 so that the power to levy as well as collect the pecuniary penalty in terms of Section 12 of the Act could be exercised by the passport authority itself.”

Therefore, it is unequivocal that the passport authority is not vested with any powers under Section 12 to impose any fine on any person who commits any offence in contemplation of Section 12 of the Act 1967.

11. Yet another argument advanced by the learned Central Government Counsel is that, a public interest litigation is not maintainable under However, on consideration of the facts and law, we are convinced that the authorities under the Act, 1967 are not vested with any power under Section 12 of the Act 1967, to impose any fine and it is a matter affecting the public. That apart, imposition of fine so made, which is an undisputed fact, without authority of law is a clear interference with the protection of life and personal liberty guaranteed under Article 21 of the Constitution of India, since it prohibits deprivation of life and personal liberty, except in accordance with the procedure established by law. Thinking, and assimilating the situation so, exercise of power is nothing short of transgression of the fundamental right guaranteed under Article 21 of the Constitution of India. There is a substantial element of public interest involved in the matter and therefore, instant public interest litigation is maintainable.

12. Therefore, we have no doubt that the petitioners are entitled to get relief Nos.1 and 2 sought for in the writ petition, which are as follows:

“i. To issue any appropriate writ, order to revoke the penalty list framed u/s 12(1)(b) prescribed in schedule III of Passport Rules, 1980 as well as Office Memorandums regarding table of penalties framed u/s 12(1A) vide No.VI/401/1/4/2009 dated 24/03/2009, VI/401/1/4/2009 dated 3/5/2010 and VI/401/1/4/2009 dated 19/08/2010, so that the power of a Passport Authority will be limited only to issue passport or refuse/reject or impound/revoke or restrict the validity of passport as stipulated in the Passports Act, 1967.

ii. To issue any appropriate writ, or Order or a direction to respondents to inform all Passport Authorities to stop the practice of imposing pecuniary penalty on applicants.”

Accordingly, we order them.

13. However, relief Nos. 3 and 4 sought for by the petitioners are in respect to the refund of pecuniary penalty unlawfully imposed under Section 12(1)(b) of the Act 1967 and collected from the passport applicants, and therefore, we are of the view that the petitioners are not entitled to get any such If at all, there is any grievance on the basis of fine imposed, it could only be a personal grievance of the persons who are imposed with fine by the authority. Therefore, the writ petition is allowed in part.

Pending interlocutory applications, if any, shall stand closed.

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