Bombay HC clarified that for a criminal proceeding to be 'pending,' it must be registered before a court that takes cognisance of the case.
MUMBAI: The Bombay high court recently clarified that for a criminal proceeding to be considered ‘pending’, it must be registered before a court of law which should take cognisance of the case. This clarification came in a writ petition filed by Kartik Vaman Bhatt, a city resident, seeking the renewal of his passport.
The court, comprising justices BP Colabawalla and Firdosh Pooniwala, made the clarification while directing passport authorities to process Bhatt’s application, which had been stalled by an adverse police report. The police had initially stalled the renewal due to two legal issues: a criminal proceeding pending before the MM Court in Andheri, Mumbai, and an application under Section 14 of the SARFAESI Act, 2002, pending before the CMM, Esplanade Court, Mumbai.
“For a criminal proceeding to be considered ‘pending,’ it is only when a case is registered before any court of law and the court has taken cognisance of the same,” the court stated, referencing an Office Memorandum from the Ministry of External Affairs dated October 10, 2019.
The court noted that the SARFAESI Act matter was civil, not criminal, and thus did not justify withholding the passport renewal. The criminal case involved a private complaint against Bhatt, alleging multiple offences under the Indian Penal Code, including Sections 147, 182, and 506. However, the court highlighted that no further orders had been passed since the complaint was referred for police inquiry under Section 202 of the CrPC, and this referral had been stayed by the High Court in 2015.
“In the facts of the present case, it certainly cannot be argued that cognisance has been taken by any court,” the order read, reinforcing that Bhatt’s case did not meet the criteria for ‘pending’ criminal proceedings.
The counsel representing Bhatt, argued that mere FIRs and cases under investigation do not fall under Section 6(2)(f) of the Passports Act, 1967, referencing the Office Memorandum. The court concurred, stating, “This Office Memorandum is certainly binding on the passport authorities.”
Additionally, the court noted a Division Bench order dated April 8, 2024, where the complainant had undertaken to withdraw the criminal complaint but had yet to do so. “We do not think that if the complainant has breached this undertaking, the petitioner ought to suffer,” the judges stated.
The court ordered the passport authorities to disregard the adverse police report and process Bhatt’s application within three weeks, provided all other aspects of the application were in order.