* THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR + WRIT APPEAL No.303 of 2010 % 23.6.2010 # Mirza Asghar Hussain, S/o.Mirza Saleem Hussain …. Appellant Vs. $ The Commissioner of Police, Hyderabad And others …. Respondents ! Counsel for the Appellant: Sri M.A.K. Mukheer Counsel for the Respondents 1 and 2: The Government Pleader for Home Counsel for the Respondent No.3: Sri Ponnam Ashok Goud, Asst. Solicitor General of India <Gist : >Head Note: ? Cases referred: 1. AIR 1967 SC 1836 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL No.303 of 2010 June 23, 2010 Between: Mirza Asghar Hussain, S/o.Mirza Saleem Hussain … Appellant And The Commissioner of Police, Hyderabad And others ... Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL No.303 of 2010 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The petitioner’s writ petition being W.P.No.24430 of 2009 seeking writ of Mandamus declaring the action of the Station House Officer, P.S.Dabeerpura, Hyderabad, in not registering the F.I.R. with regard to petitioner’s missing Passport as illegally and arbitrary, was dismissed by the impugned order. The petitioner, therefore, filed instant appeal. There is no dispute that petitioner gave a complaint to second respondent alleging that his Passport has been misplaced at his residence and that he is unable to trace it out. He also requested the second respondent to issue F.I.R. of loss of his original Passport to enable him to apply to third respondent, namely, Regional Passport Officer, Secunderabad, for obtaining duplicate Passport. When second respondent did not issue F.I.R., writ petition was filed. The Passport is of considerable value in the enjoyment of right to move freely as a citizen of the world. In Satwant Singh v A.P.O., New Delhi[1], the Supreme Court made the following observations about the importance of Passport. But the Supreme Court of America for the first time had defined the scope of Passport in Kent v Dulles, 1958-1 Law Ed 2d 1204. There the Secretary of State refused to issue Passport to each of the two plaintiffs because of the refusal to file affidavit concerning their membership in the Communist Party. To obtain the Passport each of the plaintiffs instituted an action against the Secretary of State in the United States District Court for the District of Columbia. In due course the case went up to the Supreme Court. Mr. Justice Douglas described the nature of the Passport thus: "A Passport not only is of great value-indeed necessary-abroad; it is also an aid in establishing citizenship for purposes of re- entry into the United States." At page 1212 he went on to say that the document involved more "in part, of course, the issuance of the Passport carries some implication of-intention to extend the bearer diplomatic protection, though it does no more than request all whom it may concern to permit safely - aid freely to pass, and in case of need to give all lawful aid and protection to this citizen of the United States. But that function of the Passport is subordinate. Its crucial function today is control over exit". While in the earlier judgment the emphasis was laid on the request to protect the citizen, this judgment says that the main function of a Passport is to control the exit. So a pass- port, whether in England or in the United States of America' serves diverse purposes; it is a "request for protection", it is a document of identity, it is prima facie evidence of nationality, in modem times it not only controls exit from the State to which one belongs, but without it, with a few exceptions, it is not possible to enter another State. It has become a condition for free travel. … … … The want of a Passport in effect prevents a person leaving India. Whether we look at it as a facility given to a person to travel abroad or as a request to a foreign country to give the holder diplomatic protection, it cannot be denied that the Indian Government, by refusing a permit to a person residing in India, completely prevents him from travelling abroad. If a person living in India, whether he is a citizen or not, has a right to travel abroad, the Government by withholding the Passport can him of his right. Schedule-III of the Passport Rules, 1980, prescribes the form of application for obtaining Passport etc. The instructions are also incorporated therein. Instruction No.7 is relevant and reads as under. 7. Other Documents Required for Replacement of Lost/Damaged Passports:- (a) If Passport is lost: (i) Copy of First Information Report (FIR) from the police station where the loss is reported. (ii) Affidavit as per the specimen appended (Annexure “B”). (b) If Passport is damaged. (i) attach Passport with affidavit as per specimen appended (Annexure “B”). A perusal of the Schedule-III and relevant Rules makes it clear that when a Passport is lost, in addition to the application in Form E.A. (P)-1 various documents referred to in Instruction No.2 have to be enclosed. When the Passport is lost, in addition to the documents referred to in Instruction No.2, a person is required to enclose a copy of F.I.R. from the Police Station where the loss is reported. This leads to a reasonable inference that registration or a complaint to the Police about the loss of Passport is a requirement of law made by the Parliament. No Official of the State can ignore the same because every State shall exercise its executive power keeping in view the extent and scope of executive power of the Union. The issue of Passport is a subject exclusively within the legislative power of the Union. Therefore, the Police cannot ignore the Instruction No.7 of Schedule-III of Passport Rules. In that view of the matter, the argument of the Assistant Government Pleader for Home that in the absence of commission of cognizable offence, F.I.R. cannot be issued, is to be stated for the purpose of rejection. Whether or not the Passport is lost due to commission of a cognizable offence, even if the Passport is damaged in a flood or burnt in the fire accident or lost or misplaced by inadvertence, registration of F.I.R. is requirement presumably to give credibility to the complaint of loss of Passport. In such a manner, the loss of Passport, which is important travel document, is recorded in the official records and there cannot be better official record than the record maintained by law enforcement agency. Therefore, we are inclined to interfere in this matter and issue direction to the Station House Officer, P.S. Dabeerpura, Hyderabad, to register the F.I.R. and issue certified copy of the same to petitioner to enable him to obtain a duplicate Passport. This order does not preclude the respondents 1 and 2 to prefer appeal against the judgment in C.C.No.754 of 2005 on the file of the Court of VIII Chief Metropolitan Magistrate, Hyderabad. This order also does not preclude the third respondent, namely, Regional Passport Officer, Secunderabad, to take a decision independently, if petitioner seeks duplicate Passport. The writ appeal stands disposed of accordingly. ______________ (V.V.S. RAO, J) __________________________ (VILAS V.AFZULPURKAR, J) June 23, 2010 Note: L.R. Copy be marked. (By order) YS [1] AIR 1967 SC 1836