Court’s Decision
The Allahabad High Court allowed the writ petition and held that in cases where criminal proceedings are pending, the issuance or renewal of passport under Section 6(2)(f) of the Passport Act, 1967 is not an absolute bar, provided the under-trial obtains prior permission from the concerned criminal court to travel abroad. The Court set aside the trial court’s order dated 30.07.2024 which had erroneously held that no such permission was required, and restored the petitioner’s application for reconsideration. The Court directed that the concerned court shall decide the application within three weeks, and upon grant of such permission, the Passport Officer shall process the application accordingly.
Facts
The petitioner, a practising advocate, applied for a fresh passport. However, an adverse police report was submitted citing pendency of two criminal cases:
- Case Crime No. 113 of 2013 under various IPC sections including 354 and 506;
- Case Crime No. 123 of 2011 under Sections 323, 504, and 506 IPC.
Regarding the first case, the petitioner had moved the trial court seeking permission/NOC, which was denied on 30.07.2024, relying on the judgment in Umapati v. Union of India, holding no such permission was required. For the second case, a Final Report was submitted by police, but there was no evidence of its acceptance by the Court.
Issues
- Whether an under-trial requires permission from the criminal court for issuance or renewal of a passport under the Passport Act, 1967?
- Whether the trial court erred in relying on Umapati to deny the requirement of permission for passport issuance?
- What is the legal position under the Passport Act, 1967 and the Notification dated 25.08.1993 concerning pending criminal proceedings?
Petitioner’s Arguments
- The petitioner submitted that the trial court rightly declined to issue NOC based on Umapati, which held that no permission is required for obtaining a passport.
- He claimed that the pendency of criminal proceedings should not preclude passport issuance as per the 1993 Notification.
Respondent’s Arguments
- The Deputy Solicitor General argued that the Umapati decision failed to consider earlier binding judgments and the statutory notifications under Section 22 of the Passport Act.
- He submitted that the 1993 Notification mandates prior permission from the criminal court for exemption from the bar under Section 6(2)(f).
- Multiple Division Bench decisions of the High Court and Office Memorandums from the Ministry of External Affairs were cited to support the contention that only permission to depart from India is relevant—not an NOC for re-issuance of a passport.
Analysis of the Law
Section 6(2)(f) of the Passport Act, 1967, provides that a passport shall be refused if proceedings in respect of an offence are pending before a criminal court in India. However, this is subject to exemptions under Section 22.
Section 22 empowers the Central Government to exempt individuals by notification. Exercising this power, the Central Government issued GSR 570(E) dated 25.08.1993, allowing under-trials to obtain passports if they produce court orders permitting them to depart from India. The notification prescribes conditions, such as limited validity based on the period sanctioned by the court.
Further, the Office Memorandums dated 10.10.2019 and 06.12.2024 clarified that:
- It is not an NOC for passport issuance but permission to travel abroad that is required;
- Misinterpretation of this requirement has led many under-trials to seek mere NOCs instead of actual permission to depart.
Precedent Analysis
The Court distinguished Umapati, holding it to be per incuriam as it failed to consider:
- Earlier Division Bench rulings such as Salim Kumar v. Union of India (2018), Shiv Shankar v. Union of India (2022), Smt. Rashmi Kapoor v. Union of India (2022), and Shah Alam v. Union of India (2024), all of which affirmed the requirement of court permission;
- Notifications under Section 22 and relevant provisions of the Passport Act;
- Supreme Court judgments like Rattiram v. State of M.P. (2012), Raghubir Singh (1989), Pranay Sethi (2017) affirming the principle that earlier decisions of coordinate benches must prevail where subsequent judgments do not consider them.
Court’s Reasoning
The Court held that:
- Section 6(2)(f) is mandatory in nature but not absolute due to the saving provision under Section 22;
- The 1993 Notification creates a lawful pathway for under-trials to obtain passports—conditional upon court permission;
- The permission must be for departure from India, not for issuance or renewal of passport;
- Any exemption from the statutory bar under Section 6(2)(f) without fulfilling the conditions of the 1993 Notification is impermissible;
- The Umapati judgment was incorrectly decided as it ignored binding precedent and the statutory scheme;
- The trial court’s reliance on Umapati to refuse permission was erroneous and deserved to be set aside.
Conclusion
The Court:
- Set aside the trial court’s order dated 30.07.2024 refusing to grant permission;
- Restored the petitioner’s application for consideration afresh in light of this judgment;
- Directed that the decision be made within three weeks;
- Directed the petitioner to ascertain the status of the final report in the second case and act accordingly—either by submitting the acceptance order or by seeking court permission;
- Ordered the Passport Officer to process the passport application within three weeks of such permission/order.
Implications
This judgment:
- Clarifies that permission to travel abroad, not merely a procedural NOC, is a statutory prerequisite for passport issuance during the pendency of criminal proceedings;
- Resolves conflicting interpretations by declaring Umapati per incuriam;
- Reinforces that statutory notifications and earlier precedents prevail in administrative decisions and judicial reasoning;
- Reinforces procedural compliance for under-trials seeking passports, preserving the balance between fundamental rights and due process of law under the Passport Act.
