By Adv. Salini T S.

The right to hold a passport is one of those essential rights that are guaranteed to citizens of India under Article 21 of the Indian Constitution. But can someone get a Passport during the Pendency of a criminal case is an apprehension posed even by those with legal literacy.

A few months ago, Congress leader Rahul Gandhi who was convicted by a Gujarat court in a criminal defamation case was granted a short-validity passport for three years by a Delhi court.  Mr Gandhi had had surrendered his diplomatic passport after the  conviction. He was scheduled to visit USA. When approached a Delhi court he was granted an interim passport.  Vaibhav Mehta, an Additional Chief Metropolitan Magistrate (ACMM) while granting a three -year passport instead of  regular 10-year emphasised in his judgement the need to balance public interests and the rights of the accused. The judge had earlier, during the hearing observed that the right to travel was a fundamental one.

However, usually in criminal cases the courts direct the accused to surrender their passports and also impose conditions/restrictions on overseas jaunts.  Citing such court observations one could ask “can a new passport be granted to a person who is being tried as an accused in a criminal case?” or  “can one travel abroad?”

 There are certain legal procedures that needs to be followed in such cases and that is well explained in the case of S K Ashok Kumar v.  State of Kerala that came to the High Court of Kerala in 2009.

S K Ashok Kumar, a senior advocate practicing in the Court of Judicial First Class Magistrate, Neyyattinkara , approached the Court requesting permission to travel abroad for a period of six months The lawyer was facing two criminal  cases in the same JFMC, so he approached the higher court for permission to travel abroad for official purpose.

In his submission, the lawyer had stated that he was being wrongfully implicated in the cases in question due to political vengeance. The lawyer pleaded that he  had to travel abroad to appear for an Interpol case and he may be granted permission for the same.

Adhering to the Notification GSR 570(E) dated 25/08/1993 (published in the Gazette of India, Extra. Part II S.3(i) dated 25/08/1993) issued by the Government of India and Section 22(a) of the Passport Act, 1967  the lawyer filed his application.  As per the notification, if the cases are pending before any court, that court may issue a passport to the accused subject to conditions.

It is up to the court to decide on the merit of the application. The court has the right to reject it  on public interest or the court may permit the application imposing certain conditions.

In such cases;

• The order should specify the period for which permission is valid

• If the period is not clearly mentioned in the order, the period should be fixed at one year for issuing the passport

• In case of an order granting permission to travel abroad for a period of less than one year, if the passport period is not specified in the order, the passport should be granted with the validity of one year.

• If the order allows the duration of foreign travel for more than one year, but the validity of the passport is not specified in that order, the validity of the passport should be fixed for the period for which foreign travel is allowed.

2. The passport granted under conditions 2 and 3 above can be renewed once for a period of one year. For that the applicant has to satisfy the court that the applicant has not traveled abroad for one year and that the order passed earlier by the court has not been canceled or modified during this period.

3. A passport granted under clause 1 above shall be renewed only on a fresh court order

4. The applicant can avail the passport/travel doccument only if the applicant gives an affidavit in front of the passport authority officials that he/she will appear before the court at the exact time and place required by the court while the passport is still valid.

The applicant, who is traveling abroad after being granted a passport, has to post a bond for a certain amount before the court. The validity of the passport is with effect from the date of issue of the passport.

• The author is a postgraduate degree holder in Law and a practicing lawyer in Thiruvanathapuram