# Kashif Ahmed v. Union of India & Ors. 1674 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 3 ILRA 1673
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-21
- **Case number:** Criminal Misc. Writ Petition No. 2067 of 2024
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kashif-ahmed-v-union-of-india-ors-1674-indian-law-reports-allahabad-series-51582
- **Pages:** 8

## Headnote

Passport Act, 1967-Passport was issued to
the petitioner -expired-application was filed for
grant of permission for renewal of passportrejected -is a member of political party-five
cases were lodged against the petitioner-charge
has not been fixed till date- Notification dated
25.08.1993 as well as Office Memorandum
dated 10.10.2019 issued by the Ministry of
External Affairs, Government of India, New
Delhi-ignored while passing the impugned order
-rejected the application -impugned order
quashed,

Writ Petition allowed.(E-9)

Cases Cited:

## Text

3 All. Kashif Ahmed Vs. Union of India & Ors.
1673
provisions, the prosecution would be
required to clearly state that the appellants
are being prosecuted for any one or more
offences covered by anti-social activities as
defined under Section 2(b)."

51. It is clear from a bare reading of
paragraph 13 of the said judgement that the
prosecution would be under an obligation
to clearly state that the accused persons are
being prosecuted for any one of the
offences covered by anti-social activities as
defined under Section 2(b), however, that
stage would come while framing the charge
for the offence under the Gangster Act. It
is, thus, apparent that there is no such
requirement at the time of bare registration
of FIR and, therefore, mentioning Section 3
of the Act, 1860 only would suffice at that
stage.

52. Therefore, the judicial propriety
demands that the aforesaid aspects should
also to be referred for being answered by a
Larger Bench.

53. The Registry is, accordingly,
directed to place this matter before Hon'ble
the Chief Justice for constituting Larger
Bench to answer the following questions:-

(A) Whether, in the light of Rule
60 of the Uttar Pradesh Gangster and AntiSocial Activities (Prevention) Rules, 2021
the words "certified copy of the chargesheet" used in Rule 10(1) mean certified
copy issued from the trial Court after
submission of police report by the
Investigating Agency before the trial Court
and after the Court takes cognizance
thereupon, or a certification made on the
charge sheet by the police officer involved
in investigation prior to its submission
before the trial Court is sufficient as per
section 76 of the Evidence Act, 1872,
where the offences are not covered by those
specified under Rule 22(2)?

(B). Whether in view of the
scheme of penal law covered by Indian
Penal Code, 1860 and/or the Uttar Pradesh
Gangster
and
Anti-Social
Activities
(Prevention) Act, 1986, is it necessary at all
to mention in the F.I.R. any one or more of
the offences described under Section 2(b)
of the Act?

54. Till the aforesaid questions are
answered by the Larger Bench, interim
protection granted to the petitioners under
the order dated 08.02.2024 shall remain in
operation.

55. Although we have referred the
above-noted questions for being answered
by the Larger Bench, it is made clear that in
the peculiar facts and circumstances of the
present case, the protection granted to the
petitioners or reference made to the Larger
Bench would, under no circumstances, be
treated as a judgment/order in rem so as to
install any proceedings in any other case
pending in the State of U.P. under the Uttar
Pradesh
Gangster
and
Anti-Social
Activities (Prevention) Act, 1986 before
any Authority or Court, including this
Court.
----------
(2024) 3 ILRA 1673
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Writ Petition No. 2067 of 2024

Kashif Ahmed ...Petitioner
Versus
Union of India & Ors. ...Respondents
1674 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Ajmal Khan, Javed Khan

Counsel for the Respondents:
A.S.G.G.A.

Passport Act, 1967-Passport was issued to
the petitioner -expired-application was filed for
grant of permission for renewal of passportrejected -is a member of political party-five
cases were lodged against the petitioner-charge
has not been fixed till date- Notification dated
25.08.1993 as well as Office Memorandum
dated 10.10.2019 issued by the Ministry of
External Affairs, Government of India, New
Delhi-ignored while passing the impugned order
-rejected the application -impugned order
quashed,

Writ Petition allowed.(E-9)

Cases Cited:

1. Maneka Gandhi Vs. Union of India (1978) AIR
SC 597

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Ajmal Khan, learned
counsel for the petitioner and Sri Surya
Bhan Pandey, learned Sr. Advocate and
Deputy Solicitor General of India assisted
by Sri Varun Pandey, learned counsel for
the Union of India as well as perused the
record.

2. The instant writ petition has been
filed seeking following main relief:-

"I. Issue a writ, order or direction
in the nature of Certiorari quashing the
order dated 17.01.2024 passed by learned
Additional Chief Judicial Magistrate-V,
Room No.29, Lucknow, by means of which
application for renewal of passport of
petitioner was rejected."

3. Learned counsel for the petitioner
submits that a Passport No. H8600780 was
issued to the petitioner by the Passport
Office,
Lucknow for the
period
of
01.12.2009 to 30.11.2019, which has been
expired. The petitioner has visited six times
to Kingdom of Saudi Arab and lastly he
visited in the Month of February, 2019. He
further submits that petitioner's brother-inlaw's marriage is schedule on 30.04.2024 in
the Kingdom of Saudi Arab and petitioner
is willing to attend the same.

4. Learned counsel for the petitioner
further submits that an application was
filed by the petitioner before the learned
Additional Chief Judicial Magistrate-V,
Room No.29, Lucknow for grant of
permission for renewal of passport, which
was rejected by means of order dated
17.01.2024 observing therein that this
Court has no jurisdiction for granting the
permission of renewal of passport. He
further submits that the petitioner is a
member of political party, therefore, in the
month of December, 2019, five cases were
lodged against the petitioner, which are
related to protest against CAA/NRC. In any
of the case, charge has not been fixed by
the learned trial court till date.

5. In support of his argument, learned
counsel for the petitioner has relied upon
the notification of Ministry of External
Affairs, New Delhi dated 25.08.1993,
which is being quoted hereunder:-

"G.S.R. 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. G.S.R.
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
3 All. Kashif Ahmed Vs. Union of India & Ors.
1675
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 for the travel abroad
is specified in such order, the passport shall
be issued for a period of one year;

(iii)
if
such
order
gives
permission to travel abroad for a period
less than one year, but does not specify the
period of 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 fr 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 f 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 give an
undertaking in writing to the passportissuing 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."

6. Thus, learned counsel for the
petitioner submits that the impugned order
dated 17.01.2024 is totally illegal, perverse
and arbitrary as the same is passed without
application of judicial mind and also
without considering the notification of
Ministry of External Affairs, Government
of India, New Delhi, therefore, the same is
liable to be quashed.

7. On the other hand, learned counsel
for the Union of India has placed a
notification of the Government of India
dated 25.08.1993 (which has already been
quoted above) and an Office Memorandum
dated 10.10.2019 (which is being quoted
hereunder) issued by the Ministry of
External Affairs, Government of India,
New Delhi. He has also placed an order
passed by co-ordinate Bench of this Court
dated 02.02.2024 passed in Application
under Section 482 Cr.P.C. No.839 of 2024
and submits that there is no restriction to
the learned trial court to direct for grant of
permission for renewal of passport. He
further submits that as per aforesaid
notification and order passed by the coordinate Bench of this Court, the impugned
order dated 17.01.2024 passed by learned
Additional Chief Judicial Magistrate-V,
Room No.29, Lucknow, on its face appears
to be passed without application of judicial
mind and without considering the aforesaid
notification. Thus, the impugned order is
liable to be quashed and matter be
remanded back to the concerned Magistrate
for giving permission to the petitioner for
renewal of his passport.

***
1676 INDIAN LAW REPORTS ALLAHABAD SERIES

Office
Memorandum
dated
10.10.2019 issued by the Ministry of
External Affairs, Government of India,
New Delhi:-

No. VI/401/1/5/2019

Government of India

Ministry of External Affairs

PSP Division

Patiala House Annexe, Tilak Marg

New Delhi, the l0th October 2019

OFFICE MEMORANDUM

Subject: Issue of passports to
applicants against whom criminal cases
are pending before a court of law in
India.

Reference is invited to Notification
No. GSR 570(E) dated 25.8.1993 regarding
issuance of passports to applicants who
have criminal proceedings pending against
them and whose applications would attract
the provisions of clause (f) of sub-section
(2) of Section 6 of the Passports Act, 1967.

2. GSR 570(E) dated 25.8.1993 is
reproduced below for reference:

"G.S.R. 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. G.S.R.
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
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 for the travel abroad
is specified in such order, the passport shall
be issued for a period of one year;

(iii)
if
such
order
gives
permission to travel abroad for a period
less than one year, but does not specify the
period of 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 fr 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 f 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 give an
undertaking in writing to the passportissuing 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."
3 All. Kashif Ahmed Vs. Union of India & Ors.
1677

3. It may be noted that applicants
may be refused passports only on grounds
mentioned under Section 6(2) of the
Passports Act, 1967. Section 6(2)(f) of the
Act states that the passport authority shall
refuse to issue a passport or travel
document to an applicant on the ground
that proceedings in respect of an offence
alleged to have been committed by the
applicant arc pending before a criminal
court in India. GSR 570(E) dated 25.8.1993
was introduced to give relief to such
applicants
against
whom
criminal
proceedings are pending before any Court
of law in India but who may need to travel
abroad for some urgent business. With an
undertaking under GSR 570(E) and an
order from the Court, an applicant could be
issued a short validity passport of one year
validity for the period specified by the
Court.

4. It has been noticed that there
are an increasing number of references
being
received
regarding
passport
applications attracting Section 6(2)(f). It
has also been brought to Ministry's notice
that there are a number of complex issues
involved
while
processing
such
applications. During the proceedings in a
recent court case, the Hon'ble High Court
of Delhi in W.P. (CRL) No. 2844/2018
/CRL.M.A. 48674/2018 has directed that
guidelines be issued by the Ministry
reiterating the procedure for processing of
such applications and emphasizing that
such applications need to be processed with
due care and diligence.

5. In view of the above, the
following instructions may be adopted
while processing the passport applications
in respect of those applicants who may
have criminal proceedings pending before a
criminal court in India:

(i) The provisions of GSR 570
(E) may be strictly applied in all case. GSR
570 (E) is a statutory notification and
hence, forms part of the Rules. It is to be
noted that as per Section 5 (2) of the
Passports Act, 1967, the passport authority
shall be order in writing take a decision
whether to issue or refuse a passport, after
making such inquiry, if any, as it may
consider necessary. Moreover, Section 7 of
the Passports Act, provides that a passport
or travel document may be issued for a
shorter period than the prescribed period if
the passport authority, for reasons to be
communicated in writing to the applicant,
considers in any case that the passport or
travel document should be issued for a
shorter period. Rule 12 of the Passport
Rules, 1980 only states that an ordinary
passport shall be in force for a period of 10
years which implies that an ordinary
passport cannot be issued beyond a period
of 10 years.

(ii) Whenever an applicant is
submitting a 'No Objection Certificate'
(NOC) from a Court of law in India, the
applicant
should
be
advised
that
undertaking as per GSR 570(E) should be
complete in all respects and should mention
all the pending criminal cases against the
applicant. The undertaking will have a not
clearly stating that if any false or
incomplete information is submitted by an
applicant, then his passport application is
liable to be rejected.

(iii) Extant instructions clearly
lay down that such applications should be
processed on pre- Police Verification (PV)
mode. "Pre-PV" would be mandatory in all
cases of applications submitted with GSR
570(E) to ensure that the undertaking
submitted by the applicant is properly
matched with the criminal cases mentioned
in the Police Verification Report (PVR).
Hence, such applications should not be
accepted
under
Tatkaal
nor
such
applications be moved to "post-PV" mode
1678 INDIAN LAW REPORTS ALLAHABAD SERIES
or
"No-PV"
mode
without
proper
justification and approval to be recorded in
writing.

(iv)
If
an
undertaking
is
incomplete or misleading and the applicant
is found to have suppressed details of other
criminal cases against the applicant, a
Show Cause Notice should be issued to the
applicant and action initiated against that
applicant as per provisions of Section 12 of
the Passports Act, 1967. If information that
an applicant has obtained a passport by
making
a
false
submission
or
by
suppressing material facts comes to light
after the passport has been issued, the
passport may be impounded or revoked as
per provision of Section 10 (3) (b) of the
Passports Act, 1967 after following the due
procedure.

(v) In case where the first police
verification (PV) is 'Adverse', secondary
police verification may be generated. While
a secondary PV is generated, it should be
accompanied by a detailed letter seeking
clarification regarding the pending criminal
cases against the applicant and the status of
these
cases.
Apart
from
generating
secondary PVR, the passport officers may,
if considered necessary, call for discreet
enquiry through the police authorities by
sending the court order submitted by the
applicant or even seek verification from
other government agencies/departments, as
the case may be.

(vi) In case where the secondary
Police Verification is also 'Adverse', it may
be examined whether the details brought
out in the police report match the
undertaking submitted by the applicant. It
may be noted that mere filing of FIRs and
cases under investigation do not come
under the purview of Section 6(2)(f) and
that criminal proceedings would only be
considered pending against an applicant if a
case has been registered before any Court
of law and the court has taken cognizance
of the same.

(vii) If the details given in the
police report and the undertaking submitted
by the applicant are matching, then the 'No
Objection Certificate' issued by a Court of
law submitted by the applicant would take
precedence over any 'Adverse' report
submitted by the police. In such cases, the
'Adverse' report may be overruled with the
written approval of the Passport Officer.

(viii) If the details given in the
PVR and the undertaking submitted by the
applicant are at variance, then a notice may
be issued to the applicant calling for
clarification and advising the applicant to
submit details of all pending criminal cases
as well as to submit a revised No Objection
Certificate (NOC).

(ix) If it is brought to the notice
of the authority that an applicant has
criminal
proceedings
arrayed
against
applicant before several courts of law, then
the applicant may be advised to get NOC
from all the concerned court (s). Normally,
the Court Order would make a mention of
the cases pending against the applicant as
well as the prayer made by the applicant.
This may be examined along with the
undertaking submitted by the applicant and
complaints or other court orders, if any, that
have been received against the applicant.

(x) It may noted that GSR 570(E)
only exempts and applicant from the
operation of Section 6 (2)(f) and none of
the other sub-sections of Section 6(2) of the
Passports Act, 1967.

(xi) A revised Undertaking under
GSR 570(E) is attached at Annexure 'A'.

(xii) Passport Officers may issue
an internal SOP along the above lines so
that there is no confusion in handling of
applications that would attract provisions of
section 6(2)(f) of the Passports Act, 1967.
3 All. Kashif Ahmed Vs. Union of India & Ors.
1679

6. The above instructions may be
noted for strict compliance with immediate
effect.

Annexure 'A' UNDERTAKING
(to be submitted on plain paper as per
provisions
of
GSR-570(E)
dated
25.08.1993)

I am applying/have applied for
passport with the following details:-

(a)
Name
:..........................................

(b)
Date
of
Birth
:.........................................

(c)Father's
Name
:.........................................

(d)Mother's
Name
:.........................................

(e)
Present
Address
:..........................................

(f)
File
No./ARN
No.
:................................ Date:...............

2. The Criminal case(s) with
following details is/are pending against me:

(if more than one case is pending,
details of all cases may be provided.
Additional
sheet
giving
complete
information may be attached)

(a)
Case
No.
:............................................

(b)
Name
of
Court
:............................................

(c)
Details
of
Investigating
Agency (Please provide details of Police
station
Investigating
Officer,
etc.)
:.............................................

(d)Last
date
of
hearing
:..............................................

(e)Next
date
of
hearing
:.............................................

3. I hereby undertake that I shall,
if required by the Court concerned, appear
before it at any time during the continuance
in force of the passport so issued.

4. I am aware that it is an offence
under the Passports Act, 1967 to furnish
any false information or to suppress any
material information with a view to
obtaining a passport or any other travel
document.

5. The above information given
by me in this undertaking and enclosures is
true and I am solely responsible for its
accuracy.

(Signature
of
the
Passport
applicant)

Name.............................................

Mobile No....................................

Date:................

Place:...............

***

8. After considering the arguments as
advanced by learned counsel for the parties
as well as after perusal of record, this Court
finds that Under Article 19(1)(d) and
Article 21 of the Constitution of India, the
citizens of the country are entitled for
passport. In Maneka Gandhi Vs. Union of
India (1978) AIR SC 597, the Apex Court
has held that having passport is a
fundamental right of the citizen of India
and a citizen can not be deprived of such
fundamental right.

9. This Court further observes that for
issuance of passport a declaration has to be
made by the applicant that the applicant has
not been convicted by any Court of Law in
India for any criminal offence and has not
been sentenced to imprisonment for two
years or more than two years with other
relevant information.

10. A careful reading of provisions of
the Passport Act and the Notification dated
25.08.1993
alongwith
the
Office
Memorandum dated 10.10.2019 in the light
of it's legislative backgrounds as mentioned
1680 INDIAN LAW REPORTS ALLAHABAD SERIES
above, it is clear that passport or travel
document of a person, who is facing trial
can be refused by the authority concerned
during pendency of his criminal case, but
there is no statutory bar for giving no
objection by the court concerned. No hard
and fast straight jacket formula can be laid
down regarding issuance of permission or
giving no objection by the court concerned
for issuance of passport. It is always
discretion of the court concerned and
depend upon the facts and circumstances of
each case, act and conduct of the accused
as well as nature of alleged offence
committed by him and stage of trial, etc.
Some time on account of enmity or ill will
one party enmesh the other party in a
frivolous criminal case to settle his
personal score, therefore, in the interest of
justice, it is necessary to consider all
aspects of the matter and surrounding
circumstances while granting or refusing
the no objection for renewal or reissue of
passport or travel documents by the court
concerned.

11. Thus, this Court after considering
the aforesaid judgment of Hon'ble the
Supreme Court in the case of Maneka
Gandhi (Supra), is of the view that the
learned trial court had completely ignored
the Notification dated 25.08.1993 as well
as Office Memorandum dated 10.10.2019
issued by the Ministry of External Affairs,
Government of India, New Delhi (referred
above) while passing the impugned order
and had rejected the application of the
petitioner for grant of permission for
renewal of application for passport, thus,
the impugned order is not sustainable in the
eyes of law, therefore, the same is liable to
be quashed and the matter is liable to be
remanded back to the learned trial court
concerned.

12. In view of above, the impugned
order dated 17.01.2024 passed by learned
Additional Chief Judicial Magistrate-V,
Room No.29, Lucknow, by means of which
application for renewal of passport of
petitioner was rejected, is hereby quashed
and the matter is being remanded back to
the learned trial court concerned for
passing an order afresh in light of the
Notification dated 25.08.1993 and the
Office Memorandum dated 10.10.2019 as
well as the judgment passed by Hon'ble the
Supreme Court in the case of Maneka
Gandhi (Supra).

13. Accordingly, the instant writ
petition is allowed with direction to the
learned trial court i.e. Additional Chief
Judicial
Magistrate-V,
Room
No.29,
Lucknow that if the petitioner moves a
fresh application for grant of permission for
renewal of passport within ten days from
today,
the
same
may
be
decided
expeditiously i.e. within fifteen days from
its filing in view of the above observations.
----------
(2024) 3 ILRA 1680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Misc. Writ Petition No. 3277 of 2024

Ravi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashwani Kumar Pathak

Counsel for the Respondents:
G.A.