Day: September 23, 2018

Citizens Fundamental Rights Cannot Be Held Hostage To Inordinately Long Inquiry Conducted By Passport Authorities: Delhi HC

It has to be said right at the outset that in a landmark judgment with far reaching consequences, the Delhi High Court in Jasvinder Singh Chauhan v Union of India W.P. (C) 2091/2018 & C.M. Nos. 8677/2018 & 3544/2018 dated September 11, 2018 has clearly and categorically reiterated that denial of passport or its non-renewal without assigning reasons as listed under the Passports Act, 1967 infringes the fundamental rights guaranteed under the Constitution of India. This landmark judgment was delivered by Justice Vibhu Bakhru of Delhi High Court on a writ petition filed by one Jasvinder Singh Chauhan who was praying for the renewal of his passport and issuance of a fresh passport to him. Jasvinder works as a truck driver in Canada on a legal work permit.
Citizens Fundamental Rights Cannot Be Held Hostage To Inordinately Long Inquiry Conducted By Passport Authorities: Delhi HC

                                  While craving for exclusive indulgence of esteemed readers, it must be informed here that in September 2016, he was nominated by the British Columbia Provincial Nominee Program, Ministry of Jobs, Tourism and Skills Training, Canada for permanent resident status. He therefore applied for renewal of his passport at the Indian Consulate at Vancouver, but the same was not renewed even after almost two years. This was because while processing Jasvinder’s application, it was found that his brother-in-law had manipulated the passport service subsystem of the Consulate General of India (CGI), Atlanta and dishonestly obtained a passport by impersonating him.
                                     To be sure, the Central Government believed that this fraud was committed in collusion with Jasvinder. The Centre then claimed that the matter is being investigated and it is awaiting the outcome of the investigation to decide on Jasvinder’s application. The Court, however, opined that in the case at hand, the denial of a passport – which is the effect of non-renewal for such an extended period – clearly impinges on Mr Chauhan’s fundamental rights.
                                        Starting from the scratch, para 1 of this landmark judgment starts by saying that, “The petitioner has filed the present petition under Article 226 of the Constitution of India praying for renewal of his passport bearing no. G 1149580 and seeking direction to the respondent to issue a fresh passport.” Para 2 then discloses that, “The petitioner is an Indian Citizen and is working as a truck driver in Canada on a legal work permit. On 16.9.2016, the British Columbia Provincial Nominee Program, Ministry of Jobs, Tourism and Skills Training Canada informed that the petitioner had been nominated under the Canada Provincial Nominee Program for permanent resident status.” After this comes para 3 which says that, “On 28.10.2016, the petitioner applied for renewal of his passport at the Indian Consulate at Vancouver.”
                                       Presenting the respondent version, para 4 then says that, “The respondent states that while processing the petitioner’s application for renewal of the passport, it was found that another passport (bearing no. P 2161269) which was valid from 13.04.2016 to 12.04.2026 had been issued by the Consulate General of India (CGI), Atlanta. It is stated in the counter affidavit field on behalf of the respondent that further inquiries revealed that one Sh. Jagdip Singh Dhillon, who is the brother-in-law of the petitioner, had manipulated the passport service sub system of the CGI at Atlanta and had dishonestly obtained a passport (Passport No. P 2161269) by impersonating the petitioner. It is alleged that this was in collusion with the petitioner.”
                            Going forward,  para 5 then goes on to say that, “It is further affirmed in the counter affidavit that the petitioner was called for an interview with the CGI, Vancouver and the petitioner had identified the photograph on the passport no. P 2161269 as that of his brother-in-law. The said passport was immediately revoked and a lost entry was also made in respect of the petitioner’s passport bearing no. G 1149580.” Para 6 then reveals that, “The respondent claims that the matter is still being investigated and the respondent is awaiting the outcome of such investigation.”    
                                   Simply put, this landmark judgment then shifts its attention to the petitioner’s version. Para 7 discloses that, “The learned counsel appearing for the petitioner submits that the petitioner disputes the aforesaid allegation. He submitted that the petitioner had not accepted that the photograph on the passport bearing no. P2161269 issued by CGI, Atlanta was that of his brother-in-law. It is further contended that the original passport issued to the petitioner was in possession of the petitioner and was submitted for renewal to CGI, Vancouver. The petitioner claims that his brother-in-law, is an American Citizen and it is submitted that although the photographs on the passport (no. P2161269) issued by CGI, Atlanta bears some resemblances with the petitioner’s brother-in-law, there would be no reason for him to impersonate the petitioner since he is already an American Citizen. It was further contended that the petitioner seeks the status of a permanent resident of Canada. Grant of such status would also permit the petitioner’s family to join him in that country. It is stated that currently his application for the temporary resident status has been rejected, as the petitioner has been unable to provide a valid passport.”
                                         Truth be told, Justice Vibhu Bakhru of Delhi High Court then goes on to say in para 9 after hearing the learned counsel for the parties as pointed in para 8 that, “There is no dispute that the petitioner is a citizen of India and in normal circumstances would be entitled for the passport facilities. Why then was passport denied to him and why his fundamental rights were held hostage to inordinately long inquiry conducted by passport authorities. Para 9 then also listed the grounds on which such facility can be refused as set out in Section 6 of the Passports Act, 1967.
                                          To say the least, para 10 then goes on to say that, “Ms Gosain, the learned counsel appearing for the respondent did not dispute the grounds – except as stated in Clause (i) of Section 6(2) of the Act – were inapplicable in the facts of the present case. She submitted that the petitioner’s request for passport could be refused in terms of Clause (i) of Section 6(2) of the Act: that is, where the Central Government is of the opinion that issuance of a passport will not be in public interest. However, Ms Gosain also earnestly contended that no such decision had been taken by the concerned authorities as yet.” Para 11 while espousing the petitioner’s contentions points out that, “It is relevant to state that the petitioner had applied for renewal of his passport almost two years ago. It is also not disputed that the denial of the passport has put his residential status in Canada in jeopardy. The contention that the petitioner’s livelihood has been adversely affected has also not been disputed.”
                                       For esteemed readers exclusive indulgence, it also merits mention what is stated in para 12 of this landmark judgment. While quoting the landmark Maneka Gandhi’s passport case, it elaborates by pointing out that, “In Maneka Gandhi v. Union of India: (1978) 1 SCC 248, the Supreme Court had considered the relevance of a passport in the context of personal liberty of a citizen of India. Although, the constitutional validity of Section 10(3)(c) of the Passport Act, 1967, was upheld, Justice Bhagwati (speaking for himself, Untwalia J and Fazal Ali J) observed that “even though Section 10(3)(c) is valid, the question would always remain whether an order made under is invalid as contravening a fundamental right.” The Supreme Court further observed as under:
         “…..There may be many such cases where the restriction imposed is apparently only on the right to go abroad but the direct and inevitable consequence is to interfere with the freedom of speech and expression or the right to carry on a profession. A musician may want to go abroad to sing, a dancer to dance, a rising professor to teach and a scholar to participate in a conference or seminar. If in such a case his passport is denied or impounded, it would directly interfere with his freedom of speech and expression……….
Examples can be multiplied, but the point of the matter is that although the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or 19(1)(g). In such a case, refusal or impounding of passport would be invalid unless it is justified under Article 19(2) or Article 19(6), as the case may be.”
    Clear Violation Of Fundamental Right
                                  Truly speaking, para 13 minced no words in saying it clearly and convincingly that, “In this case, denial of a passport – which is the effect of non-renewal for such an extended period – clearly impinges on the fundamental rights of the petitioner.”
          Fundamental Rights Stand Tallest
                                        More importantly, para 14 while attaching utmost importance to fundamental rights underscores that, “Although, Ms Gosain had earnestly contended that the respondent had not refused renewal of passport as yet, the fact that the petitioner’s passport has not been renewed in almost two years despite the petitioner’s compliance with all the formalities, leaves no room for doubt that the petitioner has been denied passport facilities. The fundamental rights of a citizen cannot be held hostage to an inordinately long inquiry being conducted by the respondent or its agencies.” In other words, there can be no two opinions that fundamental rights stand tallest and they cannot be held hostage to an inordinately long inquiry that is conducted by the respondent or its agencies!
                                         Needless to say, para 15 then points out that, “Even after expiry of two years, the respondent is not in a position to state that the Central Government has formed an opinion that it is not in public interest to deny passport facilities to the petitioner.” Now comes para 16 which observes that, “In the given facts, this Court is of the view that the petitioner’s passport must be renewed immediately. In this case, non-renewal of the passport has seriously curtailed the petitioner’s ability to carry on with his employment in Canada.”
                  Petition Allowed With Caveat
                                   As things stand, para 17 then states that, “For the reasons stated above, the petition is allowed. All the pending applications are disposed of.” Finally, the concluding para 18 observes that, “The respondent is directed to forthwith renew the petitioner’s passport. However, it is clarified that in the event the inquiries reveal any ground to form an opinion that the petitioner should be denied a passport in the interest of general public; this order would not preclude the respondent from cancelling the passport in accordance with law.”
                              Conclusion
                                          All said and done, it is certainly a landmark judgment written elegantly by Justice Vibhu Bakhru of Delhi High Court which more or less backs the petitioner’s claim that the fundamental rights of a citizen cannot be held hostage to an inordinately long inquiry being conducted by the respondent or its agencies. Why should the petitioner suffer for no fault of his? This alone explains why the respondent is directed to forthwith renew the petitioner’s passport. Very rightly so! It also clarifies categorically that only if there is a strong ground for denying the petitioner the passport in the interest of general public only then can it be denied but not otherwise! It is an excellent and exemplary judgment which places fundamental rights of citizens on the highest pedestal! There can be no denying it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh. 

Court Must Not Go Deep Into The Matter While Considering Bail Application: SC

To begin with, in a latest and significant judgment with far reaching consequences, the Bench of Apex Court comprising of Justice L Nageswara Rao and Justice Mohan M Shantanagoudar in State of Orissa v Mahimananda Mishra in Criminal Appeal No. 1175 of 2018 (Arising from SLP(Criminal) No. 5440/2017) With Criminal Appeal No. 1176 of 2018 (Arising from SLP (Criminal) No. 6006/2017 delivered on September 18, 2018  said clearly and convincingly that the court must not go deep into merits of the matter while considering an application for bail and all that needs to be established from the record is the existence of a prima facie case against the accused. It held that, “We are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the accused.” The Apex Court in this landmark case has cancelled the bail granted by the Orissa High Court to an ‘influential’ businessman accused in a murder case, taking into account his past attempt to evade the process of law, and also implications of the clout enjoyed by him in the community!
Court Must Not Go Deep Into The Matter While Considering Bail Application: SC
                                        To be sure, para 2 of this landmark judgment reveals that, “The two instant appeals have been preferred by the State of Orissa and the de-facto informant in FIR No. 180/2016, registered at Paradeep Police Station in Orissa State against the order dated 16.05.2017 of the High Court of Orissa at Cuttack, by which an application for bail filed by the respondent herein in connection with the aforementioned first information has been allowed.”
                                     It would be pertinent to mention here that para 3 while dwelling on the case of the prosecution mentions specifically that, “The case of the prosecution in brief, as seen from the first information report and the other connected material, is that on 26.10.2016 at about 09:00 a.m. while the deceased Mahendra Swain was heading to his office in his vehicle accompanied by the driver and his security guard, two unknown assailants hurled bombs on the vehicle, and when the inmates of the vehicle tried to escape, they opened indiscriminate firing on the deceased, leading to his death. According to the first information, the murder was committed at the behest of certain people including the respondent herein namely Mahimananda Mishra. The incident was mainly on account of business rivalry between the company of the deceased and the company of the respondent. The deceased was the Branch Manager of Seaways Shipping and Logistics Limited, Paradeep Branch. The respondent-accused is having a company, by name, Orissa Stevedores Limited. It has been alleged that the respondent had given death threats to the deceased directly and through the brother of the deceased.”
                             Going forward, para 4 discloses that, “During the course of investigation, the police found that the respondent went away to Thailand travelling via Chennai, Delhi and Nepal, before he could be arrested. Only after a Look Out Circular was issued, he was traced to Thailand and was deported therefrom to India, after which he was arrested.” It is further disclosed in para 5 that, “During the course of investigation, the police have recovered certain weapons as well as the motorcycle used for commission of the murder. According to the State, the investigation records so far, prima facie, reveal that the respondent had paid certain amount of money as advance amount for commission of the murder. The State also relies upon a letter written by the deceased to the Inspector, Paradeep Police Station, stating that he fears for his life and the life of his family, in as much as the respondent may make an attempt to take their life. According to the State, the said letter may be treated as a dying declaration of the deceased.” Para 6 states that, “The police have filed a charge sheet against the respondent and others. However, four accused are absconding. Further investigation is being proceeded with the permission of the Court.”
                            Needless to say, para 7 then states the submissions made by the learned advocates appearing from both sides. It says that, “Learned Advocates appearing on behalf of the State as well as the de-facto complainant, while taking us through the material on record, submit that the respondent is the kingpin of the conspiracy to murder the deceased and the murder has taken place as per his directions and plan. The preliminary chargesheet was filed for the offences punishable under Sections 302 and 120B of the Indian Penal Code, read with Sections 25(1)(B) and 27 of the Arms Act, as also under Sections 3 and 4 of the Explosive Substances Act. They further brought to the notice of  the Court that the respondent, being a powerful and rich person, may go to any extent to influence the witnesses by intimidating them. The very fact that he discreetly went outside India to avoid arrest would, prima facie, reveal that he is a person who can take the law into his hands. He may even abscond in the future, which may delay the process of justice. According to them, the witnesses are already frightened and consequently may not go before the Court to depose against the accused, in which event justice may suffer.
           Per contra, Shri Ranjit Kumar, learned Senior Advocate appearing on behalf of the accused argued in support of the judgment of the High Court. He contended that though the respondent was released on bail in May 2018, absolutely no allegations are forthcoming by the police that the respondent has since tried to tamper with the evidence by intimidating the witnesses. There is also no allegation of abscondence against the respondent. Merely on apprehension of the police, without any prima facie proof, the liberty of the respondent cannot be curtailed. He further submitted that any additional condition may be imposed on the respondent by this Court.”
                                Be it noted, para 8 then points out that, “It is brought to the notice of the Court by the learned Advocate for the State that though the impugned judgment of the High Court of Orissa granting the order of bail in favour of the respondent was passed as far back as 16.05.2017, the respondent was actually released from custody with effect from May 2018, in as much as he was in custody in two other cases till then.”   
                                Dwelling on why High Court proceeded to grant bail to the respondent, para 9 then goes on to say that, “The High Court proceeded to grant bail to the respondent on the ground that there is no prima facie material against the respondent to establish his involvement in the conspiracy to murder the deceased, that the undated letter of the deceased addressed to the police showing apprehension to his life cannot be treated as a dying declaration: the material on record does not indicate any motive on the part of the respondent to conspire towards the commission of murder in question, and that the confessions of the co-accused cannot be made used of against the respondent at this stage, in as much as they are admissible only to the extent that they lead to recoveries under Section 27 of the Indian Evidence Act.”
                                 Truly speaking, para 10 then very rightly argues that, “Since the investigation is yet to complete and trial is yet to begin, it would not be proper for us to dwell upon the subject matter in detail at this stage, lest it may prejudice the case of either of the parties during trial. However, prima facie, it is brought on record by the State that there was severe animosity between the deceased and the respondent, as is evidenced by the fact that at one point an intervention by the district administration was necessitated to keep the peace. The statement of the family members of the deceased discloses that the respondent had given death threats to the deceased. A letter of the deceased was seized from the house of the deceased during the course of investigation which discloses that the deceased was under the apprehension of his death by the respondent due to business rivalry. The respondent fled to Thailand to avoid arrest and was arrested only on deportation pursuant to the issuance of a Look Out Circular, which probabilises the apprehension of the police regarding future attempts of the accused to escape. A recovery of weapon has been made pursuant to the statement made by the co-accused. The respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involve charges under Section 307, IPC and three under the Explosive Substances Act. However, during the course of arguments, it was brought to the notice of the Court that in one matter, the respondent has been acquitted.”
                               Having said this, it must be underscored here that the respondent has been acquitted in just one case as revealed in para 10 but still four serious criminal cases still remain pending against him. How can this be overlooked? Not stopping here, it is further revealed in para 10 that, “Since the respondent is a powerful and influential person in his locality, the investigating officer apprehends that he may influence the witnesses by intimidating them and if the respondent continues to remain at large, his presence may influence the trial by creating fear in the minds of the witnesses.” This all the more necessitates the cancellation of bail granted to the respondent by the Orissa High Court.    
                                      Simply put, para 11 then goes on to say that, “It is common knowledge that generally direct evidence may not be available to prove conspiracy, in as much as the act of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. However, the Court, while evaluating the material, may rely upon other material which suggests conspiracy. Such material will be on record during the course of trial. However, at this stage, prima facie, the Court needs to take into consideration the overall material while considering the prayer for bail.”     
                                     To put things in perspective, para 12 then lays down what all must be looked into while granting or denying bail and it also lays down when the order of the High Court granting or rejecting bail may be cancelled by the Apex Court. It states that, “Though this Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the accused, it is open for this Court to set aside the order of the High Court, where it is apparent that the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail. (See the judgment of this Court in the case of this Court in the case of Neeru Yadav vs. State of Uttar Pradesh, (2014) 16 SCC 508 and Prasanta Kumar Sarkar vs Ashis Chatterjee, (2010) 14 SCC 496. It is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court must not go deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of a prima facie case against the accused. (See the judgment of this Court in the case of Anil Kumar Yadav vs State (NCT) of Delhi, (2018) 12 SCC 129.”  
                                      Taking a dig at the way in which the Orissa High Court handled this case, the Apex Court in para 13 then minces no words in stating it unambiguously that, “Keeping in mind the aforementioned principles, we are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the respondent.” Also, taking a dig at  the High Court for not taking into account his past record and the enormous clout which he wields in society, it is very rightly stated in para 14 that, “Since the respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that there was no possibility that there was no possibility of the respondent’s absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the process of law, but also overlooked the implications of the clout enjoyed by him in the community.”     
                              As it turned out, in the final and last important para 15 of this landmark judgment, it is clearly held that, “Having regard to the totality of the facts and circumstances of the case and for the reasons mentioned supra, the impugned judgment of the High Court granting an order of bail in favour of the respondent herein is liable to be set aside. Accordingly, the same is hereby set aside. The respondent Mahimananda Mishra, s/o Late Rabindranath Mishra, R/o Odia Bazar, P.S. Dargha Bazar, District Cuttack (Orissa), be taken into custody forthwith.”
                                     All said and done, this judgment by the top court is really a commendable judgment. It is worth emulating by all the courts in India. All courts must always take into account while granting or denying bail the key factors laid down in this landmark case. The bottom line of this landmark judgment is that court must not go deep into merits of the matter while considering bail applications. This must now always be followed in letter and spirit by all the courts!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.