“Right to Travel Abroad Is a Fundamental Right”: J&K High Court Allows Passport Plea of Accused, Directs Route via Criminal Court’s NOC
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar disposed of a writ petition challenging a passport authority’s communication that sought a court-issued ‘No Objection Certificate’ (NOC) due to pending criminal proceedings against the petitioner. The Court held that issuance of a passport in such circumstances is governed by the 1993 Notification under the Passports Act, 1967 and granted liberty to the petitioner to approach the competent criminal court for appropriate orders. The High Court clarified that if the criminal court grants such permission, the passport authority would be empowered to issue the document despite ongoing criminal proceedings.
The petitioner approached the High Court seeking quashment of a communication dated 26.12.2024 issued by respondent no. 2, the regional passport authority. Through this communication, the petitioner was directed to provide clarification on an adverse police verification report and to furnish a ‘No Objection Certificate’ from the concerned court due to pending criminal proceedings.
The petitioner previously held Indian Passport No. Z2758821, issued on 03.12.2014, which was valid until 02.12.2024. On 29.10.2024, the petitioner applied for a renewal/fresh passport. Subsequently, on 12.12.2024, the respondent authority informed the petitioner that a police verification had revealed involvement in a criminal case, specifically FIR No. 5/2021 registered under Sections 5(1)(d), read with 5(2) of the Jammu & Kashmir Prevention of Corruption Act, and Section 120-B of the RPC. The charge sheet had already been filed before the Court of Additional Sessions Judge (Anti-Corruption Cases), Jammu.
Following the intimation, the petitioner submitted a comprehensive clarification. It included disclosure of the criminal proceedings and information about pending writ petitions before the High Court—namely WP(C) No. 587/2021 and CRM(M) No. 928/2024—which challenged the validity of the said charge sheet.
Despite these clarifications, respondent no. 2 issued a communication on 26.12.2024, requesting further explanation and submission of a court-issued NOC. Aggrieved by this requirement, the petitioner filed the instant writ petition on grounds that the communication was illegal, arbitrary, and violative of both statutory provisions and fundamental rights under Article 21 of the Constitution of India.
The petitioner argued that the right to travel abroad was recognized as a fundamental right by the Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597, and could not be curtailed without due process. It was further submitted that the impugned communication was contrary to the scheme of the Passports Act, 1967 and violated the principles of natural justice. The petitioner asserted that no NOC requirement was stipulated under the Act for pending criminal proceedings unless conviction had occurred.
The respondents filed a reply contending that the application for passport renewal was processed in accordance with standard procedure. After receiving the application, the authority sought a police verification report from the Senior Superintendent of Police, Jammu. The report dated 09.12.2024 confirmed that the petitioner was involved in FIR No. 5/2021. Given the pendency of criminal proceedings, it was submitted that issuance of a passport without judicial permission would violate Section 6(2)(f) of the Passports Act, 1967.
The respondents maintained that unless a court explicitly permits the petitioner to travel abroad and directs the issuance of a passport, the passport authority was under no obligation to proceed with the renewal.
The Court considered the pleadings and legal framework. Justice Sanjay Dhar referred to the ratio laid down in Maneka Gandhi v. Union of India and stated:
“Right to travel abroad has been elevated to the status of fundamental right in terms of the ratio laid down by the Supreme Court in case of Maneka Gandhi vs. Union of India and Another, AIR 1978 SC 597, therefore, passport to an Indian citizen, cannot be refused or withheld without adopting the procedure prescribed under law.”
Addressing the statutory regime, the Court discussed the provisions of Section 6 of the Passports Act, 1967. It recorded:
“Section 6 of the said Act enumerates the grounds on which the passport or travel document to a citizen of India can be refused.”
Particularly citing clause (f) of sub-section (2), the Court noted:
“Clause (f) of sub-section (2) quoted above, provides that if the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India, it can form a ground for refusal of the passport or travel document.”
However, the Court emphasized that this statutory restriction was subject to the Central Government’s exemption powers. Referring to Notification No. GSR 570(E) dated 25.08.1993 issued by the Ministry of External Affairs, Justice Dhar stated:
“Notwithstanding the provisions contained in Section 6(2)(f) of the Passport Act, an applicant can be issued passport/ travel document subject to the appropriate orders from the Court, where the proceedings are pending.”
The Court reproduced the relevant notification in full and concluded: “From a perusal of the aforesaid notification, it is clear that... passport or travel document can be issued to him, subject to certain conditions.”
Applying these principles to the facts at hand, the Court recorded:
“In the instant case, admittedly the proceedings in respect of a criminal case are pending against the petitioner before the court of Additional Sessions Judge (Anticorruption Cases) Jammu, therefore, if the said Court grants ‘NOC’ in favour of the petitioner, respondent No. 2 would be well within its powers to issue passport/ travel document in favour of the petitioner notwithstanding pendency of a criminal case against the petitioner.”
The Court issued the following directions in its concluding part:
“In view of the above, the writ petition is disposed of with a liberty to the petitioner to approach the concerned criminal Court with an application for seeking appropriate orders for issuance of passport/travel document in his favour.”
It further directed:
“If and when such an application is made by the petitioner before the concerned criminal court, the same shall be considered by the said court on its own merits, notwithstanding the stay of the proceedings that may have been ordered by this Court in the petitions filed for challenging the charge sheet.”
Advocates Representing the Parties
For the Petitioner: Mr. S. S. Ahmad, Advocate; Mr. Zulkernain Choudhary, Advocate
For the Respondents: Mr. Vishal Sharma, Deputy Solicitor General of India; Ms. Palavi Sharma, Advocate (vice Mr. Ravinder Gupta, Additional Advocate General)
Case Title: Abdul Hamid v. Union of India and Anr.
Case Number: WP(C) No. 3093/2024
Bench: Justice Sanjay Dhar
[Read/Download order]
