TMI Blog2021 (9) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, issued a notification, which is statutory in character, exempting citizens of India against whom criminal proceedings are pending before a criminal court from the operation of section 6(2)(f) of the Act on condition that the applicant produces orders from the Court concerned permitting to depart from India. The courts have been constantly holding that the pendency of a criminal proceeding is not a bar for obtaining a passport or for travelling abroad. However, the only requirement in such cases is that the court where the criminal proceeding is pending, must grant permission for the period of such travel or the period for which the passport can be issued . Based upon such permission, the passport issuing authority can issue the requisite document enabling travel. While granting permission, the criminal courts will do well to bear in mind that the ultimate aim of granting permission is to balance the competing claims of fundamental right to travel abroad and the need to ensure the presence of the accused during trial. Other reasonable safeguards to ensure the presence of the accused during trial can also be incorporated into the order granting permission, if the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even though a police clearance was issued, on 19.02.2020, Ext.P7 communication was issued by the 1st respondent intimating shortcomings in his application for the passport. Petitioner contends that despite having proper police clearance and despite the closure of the crime registered against him, the passport authorities are harassing him by referring to those false crimes. 5. The proceedings of this case on 30.07.2021 reflects that submissions were made on behalf of the petitioner that police had filed a closure report in the crime against the petitioner and hence he need not even get permission from the Magistrate's Court. 6. Contrary to the aforesaid, it is now submitted by the learned counsel for the petitioner that, the criminal case against the petitioner is still pending investigation and the submission on 30.07.2021 was incorrect and was an unfortunate instance of wrong instructions. According to the learned counsel, it is now reliably learnt that the police are yet to complete the investigation. 7. In view of the aforesaid submission of the learned counsel, it is admitted that a crime is still pending against the petitioner but at the investigation stage. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person is the triplet of 'just, fair and reasonable'. 11. Thus to make the deprivation of the personal liberty of the right to travel abroad, just, fair and reasonable, the Government of India in exercise of the powers under section 22 of the Act, issued a notification, which is statutory in character, exempting citizens of India against whom criminal proceedings are pending before a criminal court from the operation of section 6(2)(f) of the Act on condition that the applicant produces orders from the Court concerned permitting to depart from India. 12. It may be germane to reproduce the notification issued by the Government of India as GSR 570(E) dated 25.8.1993, which is as follows: GSR 570(E) - In exercise of the powers conferred by clause (a) of section 22 of the Passports Act, 1967 (15 of 1967) and in supersession of the notification of the Government of India in the Ministry of External Affairs No. GSR 298(E) dated the 14th April 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, before whom criminal proceedings were pending against the accused in that case, to travel abroad. Noticing that there was no chance for the case to come up for trial in the near future, this Court granted permission to the accused to travel abroad. 15. On a consideration of the above-extracted notification and the provisions of the Act, it is obvious that there are still lacuna about the parameters that govern the grant of no objection by the criminal courts. Though it is for the legislature to fill up the lacuna by recourse to its rule making 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. 16. After expressing the inclination of this Court to lay down parameters for the criminal courts to act upon while granting the no objection, the counsel for the petitioner Adv. Saju S. Nair and the Central Government Counsel Adv. Jaisankar V. Nair were heard on the said issue. 17. A recap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for obtaining a passport or for travelling abroad. However, the only requirement in such cases is that the court where the criminal proceeding is pending, must grant permission for the period of such travel or the period for which the passport can be issued . Based upon such permission, the passport issuing authority can issue the requisite document enabling travel. 19. We must remind ourselves that, we are still governed by the pristine principle that an accused is presumed innocent unless and until he is found guilty. The fact that false prosecutions can mar the career and future of a person is also a factor that may well not be ignored while considering the grant of permission. 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. Reality being so, 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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