Statutory Requirement vs. Judicial Clarification: Allahabad High Court Reconciles Passport Issuance for Under-Trials
Introduction:
In the matter of Mohd. Talha v. Union of India and Othersi, the High Court of Judicature at Allahabad (Lucknow Bench) (‘The High Court’) considered an important legal issue under the Passport Act, 1967 (‘the Act’) whether an individual facing criminal trial in India is entitled to be issued a passport without first obtaining permission from the trial court. The Petitioner, a practicing advocate, sought a direction from the Court for the issuance of a passport despite two pending criminal cases. The case brought to light conflicting interpretations of ss. 6(2)(f) and 22 of the Act, and particularly the application of Notification GSR 570(E) dated 25.08.1993 issued by the Ministry of External Affairs.
Brief Facts:
The Petitioner, Mohd. Talha had applied for a fresh passport, but the Regional Passport Office in Lucknow declined to issue it due to two pending criminal cases Case Crime No. 113/2013 and Case Crime No. 123/2011.
When Talha approached the concerned trial court in respect of Case Crime No. 113/2013 seeking an NOC, the court declined, relying on a coordinate bench ruling in Umapati v. Union of India (Writ-C No. 5587 of 2024), which held that such permission from the court was unnecessary.
Based on this, the passport authority maintained its stance, prompting the Petitioner to file a writ petition.
Held:
The High Court allowed the petition, but at the same time, it set aside the order passed by the trial court declining to entertain the application for permission. The High Court clarified that under s. 6(2)(f) of the Act, the passport authority is legally required to refuse issuance of a passport if criminal proceedings are pending against the applicant, unless exempted under s. 22 by way of a statutory notification.
The High Court further emphasized that Notification GSR 570(E), issued under s. 22 of the Act on 25.08.1993 (‘1993 Notification’), provides a limited statutory exemption to under-trial individuals. However, this exemption is conditional. It applies only when such individuals obtain a specific order from the criminal court permitting them to depart from India. The Court noted that merely submitting an NOC or referring to a precedent that overlooked this statutory mandate is insufficient to override the express bar under s. 6(2)(f) of the Act.
The High Court declared that the decision in Umapati was rendered per incuriam i.e., in ignorance of existing binding judgments and statutory provisions. As such, it did not constitute binding precedent. The bench cited several earlier rulings and Supreme Court precedents that clarify how conflicting decisions of coordinate benches should be resolved in favour of the earlier, well-reasoned judgments.
The High Court further clarified that even the Ministry of External Affairs, through its Office Memorandum dated 06.12.2024, had expressly acknowledged that the requirement is for a judicial permission to depart from India, not a mere NOC for passport issuance. The Office Memorandum reiterated that in the absence of such court permission, the passport authority is within its rights to deny issuance or renewal.
Accordingly, the High Court directed that the Petitioner’s application before the trial court be revived and considered afresh in light of the legal framework discussed in the judgment. The High Court also noted that with respect to Case Crime No. 123/2011, the Petitioner must verify whether the final report had been accepted. If not, he must obtain court permission as per the same legal standards. The Passport Authority was directed to process the application within three weeks of the Petitioner submitting the required court order(s).
Analysis
This decision is a significant contribution to the legal clarity surrounding the rights of under-trial individuals under the Act. The judgment restores the doctrinal rigor that had been diluted by a growing administrative and judicial tendency to bypass the requirement of trial court permission. By holding that the bar under s. 6(2)(f) remains operative unless lifted via a court’s permission under the statutory exemption framework, the High Court has upheld the careful balance between individual liberty under a. 21 of the Constitution of India and reasonable legal restrictions under a. 19(5) of the Constitution of India.
From a practical standpoint, the ruling offers clear procedural guidance to under-trials, passport authorities, and courts alike. Applicants must first approach the trial court for permission to depart from India. Only upon such permission can they seek issuance or renewal of their passports. The period of passport validity will depend on the court’s order or, by default, be limited to one year as per the 1993 Notification. In sum, this decision safeguards the integrity of criminal proceedings while preserving the constitutional right to travel subject to lawful restrictions. It is a welcome precedent for both the judiciary and the executive and ensures that passport issuance to under-trials is lawful, consistent, and fair.
Authored by Ascend Legal Editorial Team. The opinions expressed are personal and do not constitute any legal advocacy.
