Abdul Matin Sarker Vs. Bangladesh and others, 3 LNJ (2014) 1

Case No: Writ Petition No. 7838 of 2013

Judge: M. Moazzam Husain,

Court: High Court Division,,

Advocate: Mutahar Hossain,Mrs. Purabi Rani Sharma,Mr. Sakib Rezwan Kabir,,

Citation: 3 LNJ (2014) 1

Case Year: 2014

Appellant: Abdul Matin Sarker

Respondent: Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2013-09-29


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
M. Moazzam Husain, J.
And
Md. Badruzzaman, J
 
Judgment
26th September, 2013
  Abdul Matin Sarker
... Petitioner
-Versus-
People’s Republic of Bangladesh represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat, P. W. – Shahbagh, Dhaka and others
.. Respondents.
 

Constitution of Bangladesh, 1972
Article 102
Bangladesh Passport Order (PO 9 of 1973)
Articles 6 and 7
Withholding/refusal of Machine Readable Passport (for shortly MRP) of the petitioner seeking surrendering of his handwritten passport on the ground of pendency of a criminal case or that a charge sheet is submitted against him runs contrary to law. A citizen’s right to passport is a fundamental right, linked with freedom of movement for which personal liberty cannot be denied or curtailed.

The power of the passport authority to renew the old handwritten passport or to issue new handwritten passport or MRP on surrender of the old handwritten passport is not fettered by or conditioned upon police report. Nor mere pendency of criminal cases or submission of charge-sheet against the applicant seeking renewal of his old handwritten passport by a new handwritten passport / MRP by surrender of his existing handwritten passport can be a valid ground for refusal or withholding the new handwritten passport or MRP.     . . .(11)
 
The withholding the MRP of the petitioner sought on surrender of his handwritten passport on account of mere pendency of a criminal case or that a charge- sheet is submitted against him runs contrary to law and amounts to sheer dereliction of duty on the part of the respondents. A citizen’s right to passport is directly linked with his/her fundamental right to ‘freedom of movement’ for that matter personal liberty guaranteed by the Constitution which cannot be denied, curtailed or infringed unless under strict requirement of law.   ...(12)
 
Mr. Sakib Rezwan Kabir, Advocate                
. . .For the petitioner
 
Mr. Mutahar Hossain, D.A.G with
Mr. Samarendra Nath Biswas, A.A.G and
Mrs. Purabi Rani Sharma, A.A.G                    
. . . For the respondents.
 
Writ Petition No.  7838 of 2013
 
JUDGMENT
M. Moazzam Husain, J:

This Rule was issued calling upon the respondents to show cause as to why they shall not be directed to issue a Machine Readable Passport against the Delivery Slip No. 680100000079336 replacing his handwritten passport earlier issued by the respondents.

The facts relevant for disposal of this Rule in, brief, are that the petitioner is a citizen of Bangladesh and he was holding a valid passport bearing No. W0488995 issued on 17.08.2004 valid till 16.08.2014. While the petitioner was so holding a valid passport a circular vide Memo No. স্বঃমঃপানীঃ (সাধারণ)-০২/১০(বহি-১)/৩৩৪ dated 27.03.2010 was issued by the Government launching machine Readable Passport (hereinafter referred to as “the MRP”) offering to the citizen holding valid passport to replace their existing hand-written passport with the MRP. Thereafter on 03.10.2010 another circular was issued by the Government saying, inter alia, that in case of replacement of hand written passport by the MRP no police report would be required. Thereafter by another circular dated 06.2.2011 the relaxation of police inquiry was further extended to cases of renewal saying that even in case of renewal of hand written passport and replacement of the same with MRP no police report shall be required.

With the above factual background the petitioner made an application on 10.2.2013 for replacement of his hand- written passport as mentioned above with an MRP having surrendered his original passport to the authority in accordance with law. Pursuant to the application made by the petitioner the passport authority issued a Delivery Slip (Annex-D) on 10.02.2013 bearing No. 680100000079336 wherein 17.3.2013 was fixed for delivery of the MRP. The petitioner having received the delivery slip was waiting for his MRP to be received on the date mentioned in the slip. In the delivery slip there was a mention that ‘passport notification will be sent to the applicant’s mobile phone/email’. The date for delivery expired and thereafter quit some time elapsed but no notification of the kind was received by the petitioner. In the circumstances the petitioner sent his representative to the passport office to enquire about the matter. The person who was sent to the passport office by the petitioner inquired about the development over the replacement case of the petitioner but the passport officials failed to give any satisfactory reply.
Meanwhile more than four months had elapsed without any positive result. Ultimately having had no other alternative the petitioner served upon the passport authority a demand of justice notice on 20.7.2013. Pursuant to the notice demanding justice respondent No.3 who happens to be one of the Deputy Director of the passport department made a reply to the legal notice on 25.07.2013 in which he stated, inter alia, that upon an inquiry made by special branch of police, Narshingdi it transpired that the petitioner is a charge sheeted accused in a pending criminal case and in the circumstances the authority is unable issue any fresh passport or make replacement of the original passport with an MRP.

With the backdrop of facts the petitioner obtained the instant   Rule seeking a direction in the form of mandamus upon the respondents to replace his hand written passport by an MRP.

Mr. Sakib Rezwan Kabir, learned Advocate appearing for the petitioner submits that the issuance of the MRP to the petitioner is most illegally withheld by the authority on the ground of pendency of criminal case inasmuch as there is no bar in law on  replacement of the original passport with MRP on account of mere  pendency of the criminal case. He took us through a circular (Annexure-B)  issued by the Ministry of Home on 03.10.2010 wherein  it is clearly stated that in case of  replacement of hand- written passport with an MRP no police report shall be required. He further submits that the verification requirement was further relaxed by another circular dated 06.2.2011 wherein it was stated that even in cases of renewal of hand- written passport police report shall not be required. Mr. Sakib contended  that the passport authority in withholding the MRP of the petitioner clearly acted in violation of law to the detriment of the petitioner’s personal liberty guaranteed by the constitution itself. In the circumstances, the petitioner had no alternative other than seeking mandamus for an appropriate remedy. 

Mr. Mutahar Hossain learned Deputy Attorney General found it difficult to defend the factum of withholding of MRP of a citizen on account of charge-sheet submitted against him in a pending criminal case.

We have heard the learned Advocates and perused the law and the records of the case. It appears that Articles 6 and 7 of Bangladesh Passport Order, 1973, provides certain conditions upon which the passport authority may refuse to issue passport or travel documents or vary, cancel the endorsements thereon or impound the passport already issued. Article 6 of the Order says, amongst others, that the passport authority may refuse to issue passport or travel documents if it is satisfied that the applicant is evading or likely to evade appearance in any pending proceedings against him in a criminal court or that an order prohibiting his departure from Bangladesh is made by the court. Article 7 says, inter alia, that the passport authority, in fit circumstances, may vary or cancel the endorsement/conditions on a passport or travel document and ask the holder of passport or travel document to deliver up such passport or travel document. Sub-Article (2) of Article 7 says, inter alia, that the passport authority may impound or revoke a passport or travel document if a) the passport/travel document is in wrongful possession of any person b) passport/travel document is obtained by suppression of facts and c) the passport/travel document is required to be impounded/revoked in the interest of sovereignty, integrity or security of Bangladesh or in the public interest. The passport or travel document may also be revoked under the Order on conviction of the holder thereof for violation of any of the provisions of the Order or the Rules framed thereunder. 
Seen in the light of the law the reply given by the passport authority in justification of their refusal to issue MRP to the petitioner as contained in Annexure-F seems to us to be grossly arbitrary and far beyond powers conferred by law. The Respondent no.3 explained the reason for withholding of the MRP in his letter contained in Annexure-F. The primary reason for withholding/refusal as assigned by him is- পুলিশ তদন্ত প্রতিবেদনে তিনি নরসিংদী সদর থানার হত্যা মামলা নং ৬, তারিখ ০৩.১১.২০১১ংকৃঢ় তারিখের ৬(১১)১১ চার্জসীটভুক্ত ৬ নং অাসামী উল্লেখ করে পাসপোর্ট না দেওয়ার জন্য সুপারিশ করা হয়z ১৯৭৩ সালের পাসপোর্ট অাইনের অাদেশ অনুসারে পাসপোর্ট অাবেদনকারীর বিরুদ্ধে মামলা থাকাকালীন সময় পাসপোর্ট ইস্যূ না করার জন্য উল্লেখ রয়েছে। The language of the Respondent clearly suggests that  issuance of MRP was withheld on recommendation of a police officer made on the basis of pendency of a criminal case against the petitioner coupled with the satisfaction of the passport authority that the Passport Order of 1973 prohibits issuance of passport during pendency of criminal case against the applicant.

The Bangladesh Passport Order, 1973, including the barring clauses mentioned above nowhere mention that passport cannot be issued, renewed or handwritten passport cannot be replaced by MRP during pendency of criminal cases against an applicant or against the holder thereof. Nor is there any law empowering the passport authority to refuse replacement of handwritten passport by the MRP on mere recommendation of police. Furthermore, the circular bearing Memo No. PP (G-1)01/10(immi.i) 1026 dated 03.10.2010 issued by the Ministry of Home clearly mentions that in cases of application for new handwritten passport or MRP by surrendering the old handwritten passport no police report shall be required. We are unable to follow from where the passport authority has found requirement of police report in cases of issuance of MRP on surrender of the handwritten passport or that the Passport Order of 1973 requires police report before replacing the handwritten passport by MRP. The factum of withholding of the MRP of the petitioner on the recommendation made by police by reference to a pending criminal case and finding legal bar on that count seem to us to be the result of total non-application of mind of the respondents to the true legal position and their cavalier attitude to the right of the citizens.

The power of the passport authority to renew the old handwritten passport or to issue new handwritten passport or MRP on surrender of the old handwritten passport is not fettered by or conditioned upon police report. Nor mere pendency of criminal cases or submission of charge-sheet against the applicant seeking renewal of his old handwritten passport by a new handwritten passport / MRP by surrender of his existing handwritten passport can be a valid ground for refusal or withholding the new handwritten passport or MRP.

The withholding the MRP of the petitioner sought on surrender of his handwritten passport on account of mere pendency of a criminal case or that a charge- sheet is submitted against him runs contrary to law and amounts to sheer dereliction of duty on the part of the respondents. A citizen’s right to passport is directly linked with his/her fundamental right to ‘freedom of movement’ for that matter personal liberty guaranteed by the Constitution which cannot be denied, curtailed or infringed unless under strict requirement of law.  

In view of what is stated above we are in the view that this is eminently a fit case where interference by court is called for to protect liberty of citizens.

In the result, this Rule is made absolute. The Respondents are directed to issue a Machine Readable Passport (MRP) in favour of the petitioner against the Delivery Slip (Annex-D) standing in his name replacing his handwritten passport within 10(ten) working days from the date of receipt of this judgment.

        There shall, however, be no order as to cost.

        Ed.