Introduction:
In the recent case of Mohammad Umar Vs. Union of India & Ors., the Allahabad High Court has clarified that under Section 10(3)(e) of the Passports Act, 1967, the impounding of a passport in cases where criminal proceedings are pending is not mandatory. The Court emphasised that the term “may” as used in this provision confers discretion upon the passport authority, enabling them to consider each case on its merits and to document their satisfaction in writing should they decide to impound the passport.
Statutory Framework:
Section 10 of the Passports Act, 1967, delineates the circumstances under which a passport authority is empowered to vary, impound, or revoke a passport or other travel documents. Specifically, Section 10(3)(e) provides that the passport authority “may” impound or cause the revocation/impounding of a passport if the holder is subject to ongoing criminal proceedings in an Indian court.
Judicial Interpretation:
The bench, comprising Justice Shekhar B. Saraf and Justice Manjive Shukla, held: “The legislature under Section 10(3)(e) of the Passports Act, 1967 had deliberately used the word ‘may’, indicating that in situations enumerated under Section 3 of the Passports Act, 1967, the passport officer, upon recording reasons, has the discretion to impound a passport. However, it is not necessary that in every case falling under Section 3, the passport officer is mandatorily required to impound the passport.”
Factual Background:
The petitioner, Mohammad Umar, was issued a passport on 20.08.2014, valid until 19.08.2024. He was residing and working in Saudi Arabia. In 2023, his wife lodged a complaint under various sections of the Indian Penal Code and other acts at the Mahila Thana in District Ambedkar Nagar. Following the issuance of a chargesheet, the petitioner contested the proceedings before the High Court, which ordered an interim stay. During this period, the Regional Passport Officer, Vipin Khand, Gomti Nagar, Lucknow, notified the petitioner of the impending impoundment of his passport, prompting him to challenge the communication under Article 226 of the Constitution of India.
Arguments:
The petitioner’s counsel argued that the word ‘may’ in Section 10(3) signifies the discretionary nature of the authority’s power to impound passports. They contended that impounding is not mandated in every case where criminal proceedings are pending and that each case’s specific facts and circumstances must be evaluated with reasons for impounding documented in writing.
Conversely, the respondent’s counsel argued that the decision to impound the passport was based on the pending criminal cases against the petitioner and was made in accordance with the law.
High Court’s Verdict:
Upon examining Section 10(3) and 10(3)(e), the Court underscored the legislative intent to grant discretionary powers to the passport authority regarding the impoundment or revocation of passports amid pending criminal cases. The Court asserted that the passport authority must document its reasons and satisfaction to justify the necessity of impounding a passport to prevent trial delays.
“The legislature under Section 10(3)(e) has empowered the passport authority to impound a passport if satisfied that such action is warranted due to pending criminal proceedings. Before ordering the impounding of a passport, the officer must consider each case’s facts and circumstances and record reasons for concluding that the passport holder may misuse the passport to avoid court appearances and delay proceedings.”
Precedent and Conclusion:
The Court referenced its previous decision in Mohd. Farid Vs. Union of India & Anr., reiterating that passports may only be impounded where there is a substantial apprehension of misuse to evade criminal trials. The mere pendency of a criminal case is insufficient for passport impoundment; detailed reasons must be recorded.
Given that the criminal cases against the petitioner arose from matrimonial discord and had been stayed by the High Court, the Court noted the absence of recorded reasons indicating potential passport misuse by the petitioner. Consequently, the communication regarding the impoundment of the petitioner’s passport was quashed.
This ruling reinforces the discretionary power vested in passport authorities under Section 10(3)(e) of the Passports Act, mandating a case-by-case analysis with documented reasons for impounding passports amid pending criminal cases.
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