# Vijay Gupta v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 4 ILRA 398
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-30
- **Case number:** Application u/s 482 No. 23506 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-gupta-v-state-of-u-p-ors-opp-parties-49960
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code,1860 - Sections 325, 323, &
504-Cross-case-In the present case
the applicant seeks passport to pursue
his studies within India-In both the
cases, the police filed charge-sheet but
till
date
charges
have
not
been
framed-The
police
has
submitted
wrong and contradictory report but the
Passport Authority even without going
through the report has refused to issue
passport to the applicant for pursuing
his educational course within IndiaHence, the impugned order passed by
ACJM that he has no jurisdiction to
give
'No
Objection
Certificate'
is
against the law-Directions given.(Para
1 to 18)

The application is disposed of. (E-6)

List of Cases cited:
4 All. Vijay Gupta Vs. State of U.P. & Ors.
399
Ravindra Nath Bhargav Vs St. of U.P. (2019) 0
Supreme (All) 194

## Text

398 INDIAN LAW REPORTS ALLAHABAD SERIES
injuries caused by stick in the right ear of
the victim by Naazim can not be said to be
a grievous hurt as there is no medical report
that there has been permanent loss of
hearing capacity of her right ear and also it
can not be said that such injury is covered
under Section 326 I.P.C.

31. From the above discussions, this
Court is of the considered view that the
learned A.C.J.M. Ist Aligarh and the then
learned Sessions Judge, have been failed in
appreciating the facts, the medical reports and
the law in right perspective and have wrongly
concluded that there was a grievous hurt
defined under Section 320 (3) I.P.C to the
opposite party no. 2, and punishable under
Section 326 I.P.C.

32. The power of taking cognizance
regarding taking cognizance has been
considered by the Apex Court and the High
Courts, and it has been concluded that at the
time of taking cognizance, the concerned
Magistrate has limited power and at this stage
the learned Magistrate or the concerned Court
can not add or alter Section(s), considering
the case diary and the charge-sheet. If the
concerned Magistrate or the Sessions Judge
are of the view that some Section(s) have
been left by the I.O, it has power to add or
alter the Section(s) at the time of framing the
charge, but not at the stage of taking
cognizance.

33. On the basis of above, discussion
this Court is of the considered view that
taking cognizance and summoning the
accused applicants under Section 326 I.P.C is
bad in the eye of law and the judgment of the
Revisional court is also not the correct
preposition of law. Hence this application
succeeds and is liable to be allowed.

O R D E R

This application under Section 482
Cr.P.C, is allowed with regard to taking
cognizance and summoning t he applicants
under Section 326 I.P.C by the learned
A.C.J.M Ist, Aligarh, affirmed by the
Revisional Court are accordingly quashed.
----------
(2023) 4 ILRA 398
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 23506 of 2022

Vijay Gupta ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Sandeep Kumar Dubey

Counsel for the Opp. Parties:
A.S.G.I., G.A., Sri Rahul Anand Gaur

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code,1860 - Sections 325, 323, &
504-Cross-case-In the present case
the applicant seeks passport to pursue
his studies within India-In both the
cases, the police filed charge-sheet but
till
date
charges
have
not
been
framed-The
police
has
submitted
wrong and contradictory report but the
Passport Authority even without going
through the report has refused to issue
passport to the applicant for pursuing
his educational course within IndiaHence, the impugned order passed by
ACJM that he has no jurisdiction to
give
'No
Objection
Certificate'
is
against the law-Directions given.(Para
1 to 18)

The application is disposed of. (E-6)

List of Cases cited:
4 All. Vijay Gupta Vs. State of U.P. & Ors.
399
Ravindra Nath Bhargav Vs St. of U.P. (2019) 0
Supreme (All) 194
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Shri Sandeep Kumar Dubey,
learned counsel for the applicant, Shri
Rahul Anand Gaur, learned counsel for
opposite party no.1 as well as learned
A.G.A. for the State.

2. This application under Section 482
Cr.P.C. has been filed with the prayer to
direct the opposite party no.3 to issue a
passport to the applicant to pursue his
Technical Course (Seafarer Course) in
Maritime
Training
Institute
(MTI),
Howrah. Further prayer to quash the order
dated 30.5.2022 passed by Additional Chief
Judicial Magistrate, Bhadohi in Case No.
7253 of 2021 (State Vs. Guddu and Others)
and to issue a 'No Objection Certificate' for
issuing a passport to the applicant for
pursuing the aforesaid course.

3. In brief, facts of the case are that
one Pappu Gupta lodged an F.I.R. on
17..2021 at P.S.- Aurai, under Section 325,
323, 504 I.P.C. against the applicant and his
two brothers. The father of the applicant
has also filed a criminal case against the
informant Pappu Gupta and his sons. In
both the cases, the police filed a chargesheet but till date charges have not been
framed. After submission of the chargesheet the trial Court has taken cognizance
and the applicant was granted bail as the
offences are bailable and triable by the
Magistrate. Presently, the applicant is a
student of B.Com IIIrd year. The MTI
conducts
seafarer
training
which
is
approved by the Director General of
Shipping, Government of India, Mumbai
which is for a period of six months and is
held twice a year. The applicant applied for
the said course. Under clause 9.1.(1) certain
conditions for registration for admission in
Maritime Training School have been
prescribed. One of the conditions is 'The
candidate must have a valid passport'. The
copy of the brochure issued by MTI has
been annexed as Annexure No. 2 to the
petition. Since the applicant was not having
passport, therefore, he applied for the same
before opposite party no.3 and the
application is annexed as Annexure No.3.
On the application of the applicant, the
opposite party no. 3 called for a police
verification report and it appears that the
police submitted report that the applicant is
accused in Case No. 7253 of 2021 (State
Vs. Guddu and Others) pending in the
Court
of
Additional
Chief
Judicial
Magistrate, Bhadohi at Gyanpur. The
applicant having no alternative moved an
application duly supported by affidavit in
the aforesaid case before the Additional
Chief Judicial Magistrate, Bhadohi for
issuance of 'No Objection Certificate' for
the purpose of issuing passport in favour of
the applicant, copy of the application dated
27.4.2022 is annexed as Annexure No. 4.
The learned Magistrate vide order dated
30.5.2022 held that the issue is not within
his jurisdiction and hence 'No Objection
Certificate' can not be issued in favour of
the applicant and the application was
disposed of. It is stated that the issue of
passport is governed by Passports Act,
1967 and it comes under the jurisdiction of
opposite party nos. 1 and 3. Under the
Passports Act certain conditions have been
prescribed under which the Passport
Authority can refuse to issue the passport.
The applicant has applied for the passport
as the same is condition precedent for
admission in MTI. The Hon'ble Supreme
Court has held that under Article 19(1)(d)
of Constitution of India the applicant is
entitled to go throughout territory of India.
400 INDIAN LAW REPORTS ALLAHABAD SERIES
Further, non-issuance of Passport to the
applicant to pursue his studies within India
is an unreasonable restriction which is
violative of Article 14, 19(1) (d) and 21 of
the Constitution of India. In the case of
Ravindra Nath Bhargava Vs. State of U.P.
this Court had elaborately dealt with the
circumstances under which the passport can
be issued. In the present case the applicant
seeks passport to pursue his studies within
India due to the condition imposed by the
government of India and, therefore, the
opposite parties can not refuse to issue
passport to the applicant.

4. A counter affidavit has been filed
on behalf of opposite party no.3-Regional
Passport Officer, Passport Office, Varanasi,
alongwith affidavit of Kanishk Sharma,
Regional Passport Officer, Lucknow, with
the averments that on the adverse police
verification report received on 14.12.2021,
the passport facilities have been denied by
the Authority.

5. The applicant has filed rejoinder
affidavit with the averments that the police
has submitted wrong and contradictory
remark/report in which column no. 3
specifically
provides
that
where
the
applicant has been convicted in any crime
during the preceding 5 years and sentenced
to imprisonment for 2 years or more than 2
years. However, respondent no. 3 even
without going through the report has
refused to issue passport to the applicant
for pursuing his educational course within
India.

6. The applicant has filed relevant
papers as annexures with the petition. From
the perusal of the papers, it is revealed that
the applicant has passed High School in
year 2016 and Intermediate in the Year
2018, he has also annexed mark-sheet of
B.Com IInd year. The applicant has filed
brochure as annexure no. 2 wherein as per
clause 9.1. the first condition is that the
candidate must have a valid passport. The
applicant has filed application form as
annexure no. 3. Copies of application and
affidavit moved before the trial Court for
issuance of 'No Objection Certificate' and
order passed thereon have also been filed.
The learned Magistrate has rejected the
application on the ground that the issuance
of 'No Objection Certificate' is not within
his jurisdiction.

7. Certainly 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. From the perusal of
brochure it is established that having a
valid passport is a condition precedent for
admission in MTI. A citizen has right to
education in India provided that they
qualify for the admission in the concerned
course.

8. For issuance of passport there is a
declaration form in which at serial no. 5
following declaration has to be made by the
applicant which is as under:

"I have not been charged with
criminal proceedings nor is there any
arrest warrant or summon pending before
any Court of Law in India against me."

9. This condition is also in respect of
criminal proceeding according to which a
declaration has to be made that the
applicant has not been convicted by any
Court of Law in India for any criminal
4 All. Vijay Gupta Vs. State of U.P. & Ors.
401
offence and has not been sentenced to
imprisonment for two years or more than
two years.

10. Learned A.G.A. concedes that the
applicant is not convicted in any case by
any Court of Law in India but certainly the
impugned criminal case is pending against
him.

11. The question arises as to whether
the declaration at serial no. 5 regarding
pendency
of
criminal
proceeding
is
mandatory or directory in nature.

12. In this respect some relevant
notifications issued by Ministry of External
Affairs of Government of India are noted
herein below:

"Ministry of External Affairs, Noti. No.
G.S.R. 570(E), dated August 25, 1993,
published in the Gazette of India, Extra.,
Part II, Section 3(i), dated 25th August,
1993,
pp.
2-3,
Sl.
No.
289
[No.
VI/401/37/79]

In exercise of the powers conferred by
clause (a) of Section 22 of the Passports
Act, 1967 (15 of 1967) and in suppression
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."

13. From the aforesaid notifications
the Central Government has exempted
those citizens against whom any criminal
proceedings is pending in any Court of law
402 INDIAN LAW REPORTS ALLAHABAD SERIES
in India on the pre condition that if the
Court permits them to deport from India,
the passport should be issued. It is
noteworthy that in this case the applicant is
not seeking issuance of passport for going
abroad.

14. In Ravindra Nath Bhargav Vs.
State of U.P. 2019 0 Supreme (All) 194, a
coordinate Bench of this Court has held
that :

"15. A careful reading of aforesaid
provisions of the Passport Act and
notification dated 25.08.1993 in the light of
it's legislative backgrounds as mentioned
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.
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."

15. In this case, the allegations against
the applicant are not heinous in nature and
are not triable by the Court of Sessions. A
cross-case has also been lodged by the
father
of
the
applicant
against
the
informant. The applicant does not seek the
issuance of passport for visiting abroad but
for admission in MTI which would help in
building his personality. The purpose of
obtaining passport is not for pleasure or
picnic.

16. The applicant has been enlarged
on bail on the execution of personal surety
bonds. In case, he remains occupied in his
training the proceeding of the case may go
on through counsel. From the perusal of
records it transpires that there is no need of
the applicant for identification during trial
as both the parties are well known to each
other.

17. Considering the facts and
circumstances of the case, the impugned
order dated 30.5.2022 passed by learned
Additional
Chief
Judicial
Magistrate,
Bhadohi, that he has no jurisdiction to give
'No Objection Certificate' is against the law
and the same is liable to be quashed.

18. Accordingly, the application is
disposed of with the following directions :-

(i)
Applicant
shall
submit
his
undertaking along with his affidavit within
a period of one month from the date of this
order before the trial court concerned
clearly mentioning that he will not leave
India during pendency of his trial without
prior permission of the trial court and he
shall appear on each dates in the trial
before the trial court.

(ii) In case the aforesaid undertaking is
filed by the applicant as directed above, the
trial court on demand by the applicant shall
issue certified copy of undertaking given
by the applicant within a week to him.

(iii) The applicant shall move a fresh
application along with certified copy of this
4 All. Riyazuddin & Ors. Vs. State of U.P. & Anr.
403
order and his aforesaid undertaking before
the Passport Officer/authority concerned
for renewal or reissue of his passport, as the
case may be.

(iv) In case such application is moved
by
the
applicant,
the
Passport
Officer/authority concerned considering the
case of the applicant afresh in the light of
observation made by this Court in this
order as well as contents of undertaking of
the applicant, shall decide the application
of the applicant in accordance with law
within three weeks from the date of moving
application by the applicant before him.
----------
(2023) 4 ILRA 403
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 29856 of 2022

Riyazuddin & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Shams Tabrez Alam Ansari

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 - Indian
Penal Code, 1860- Sections 498-A, 323,
504, 506 & 3⁄4 D.P. Act-Challenge tocognizance as well as summoning ordermarriage performed 18 years before the
alleged incident-no medical report in
support of the prosecution version no
date, time and place of the alleged
incident has been given by the opposite
party and the witnesses-no specific role
has
been
assigned-no
allegation
of
additional dowry-Learned Magistrate has
not assigned the reason regarding not
taking the cognizance under the impugned
all sections-While taking cognizance only
file
was
provided
to
the
concerned
Stenographer and he transcribed the order
and thereafter without applying judicial
mind, it was signed by the Judicial
Magistrate-the learned Magistrate has not
even thought to follow the relevant
judicial precedents while passing the
order-No prima facie case is made out-the
impugned order is liable to be set
aside.(Para 1 to 20)

The application is allowed. (E-6)

List of Cases cited:

1. Kahkashan Kausar @ Sonam & ors. Vs St. of
Bih. & ors. (2022) 0 Supreme (SC) 117

2. Lalita Kumari Vs St. of U.P. & ors. (2014) 2
SCC 1

3. Social Action forum for Manav Adhikar & anr.
Vs UOI, Ministry of Law & Justice & ors. (2018)
10 SCC 443

4. Rajesh Sharma & ors. Vs St. of U.P. &
anr.(2018) 10 SCC 472

5. Arnesh Kumar Vs St. of Bih. & anr. (2014) 8
SCC 273

6. Preeti Gupta & anr. Vs St. of Jharkhand & anr.
(2010) 7 SCC 667

7. Geeta Mehrotra & anr. Vs St. of U.P. & anr.
(2012) 10 SCC 741

8. K. Subba Rao Vs St. of Telangana (2018) 14
SCC 452

9. St. of Guj. Vs Girish Radhakrishnan Varde
(2014) 1 JIC 595 SC

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Shri Shams Tabrez Alam
Ansari, learned counsel for the applicants