Can a person get passport during pendency of criminal case?

Question: Is it possible for a person to get passport while he is facing a criminal case in a court in India? Case is still pending and trial is yet to be completed, i.e., there is no conviction as of now.

Answer: The legal position with regard to issuance of a passport to a person who is at present facing a criminal case (but, not yet convicted) in India is as under.

Section 5 of the Passports Act, 1967, deals with the making of an application for passport or travel documents and for orders thereon. On such an application being made, clause (c) of Section 5(2) empowers the passport authority to refuse to issue passport, etc., and this clause is reproduced below:

“(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,—

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

Now, Section 6(2) of the Passports Act lays down the grounds on which the passport authority may refuse to issue the passport, and it is reproduced as under:

“(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 interest.” [Emphasis supplied.]

Thus, the above legal provisions make it clear that grant of passport may be refused to a person, inter alia, if proceedings in respect of an offence alleged to have been committed by him are pending before a criminal court in India. It can also be refused if a warrant or summons for the appearance, or a warrant for the arrest, of the person 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.

Thus, the general rule is that passport may not be granted to a person against whom proceedings in a criminal case are pending in a court in India. However, the Government of India, in public interest, has relaxed the above general rule for those persons who are facing a criminal case in India by issuing a Notification vide Ministry of External Affairs Notification No. GSR 570 (E), dated August 25, 1993, published in the Gazette of India, Extraordinary, Part-II, Section 3(1), dated 25^th August 1993, as per which the Government has notified as under:

“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. G.S.R. 298 (E), dated the 14^th 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 pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of clause (f) of sub-section (2) of Section 6 of the said Act, subject to the following conditions, namely:-

(a) the passport to be issued to every such citizen shall be issued-

(i) for the period specified in order of the court referred to above, if the court specified a period for which the passport has to be issued; or

(ii) if no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period one year;

(iii) if such order gives permission to travel abroad for a period of less than one year, but does not specify the period validity of the passport, the passport shall be issued for one year; or

(iv) if such order gives permission to travel abroad for a period exceeding one year, and does not specify the validity of the passport, then the passport shall be issued for the period of travel abroad specified in the order.

(b) any passport issued in terms of (a) (ii) and (a) (iii) above can be further renewed for one year at a time, provided the applicant has not travelled abroad for the period sanctioned by the court; and provided further that, in the meantime, the order of the court is not cancelled or modified;

(c) any passport issued in terms of (a) (i) above can be further renewed only on the basis of a fresh court order specifying a further period of validity of the passport or specifying a period for travel abroad;

(d) the said citizen shall given an undertaking in writing to the passport-issuing authority that he shall, if required by the court concerned, appear before it at any time during the continuance in force of the passport so issued.”

Vide a Circular No. V.I/401/1/3/2014 dated 21.08.2014 issued by the Ministry of External  Affairs, the contents of the above Notification have been referred to and it is stated therein that the applicant (who is facing a criminal case) is required to submit permission of the concerned court as well as an undertaking on a plain paper, as provided in para (d) of the above Notification of 1993. Further, a standard format for the said undertaking has been provided in the said circular.

Thus, in conclusion, it can be said that while there is a general restriction on grant of a passport to a person facing a criminal case in India, passport can still be issued to such a person on the specific permission granted by the concerned court (and for the period mentioned in the said Notification of 1993) if he files an undertaking as mentioned above. This is the present legal position with regard to issuance of a passport to a person facing proceedings in a criminal case in a court in India.