Mere pendency of a criminal case does not automatically disqualify a person from exercising his right to seek long-term opportunities abroad, the Delhi High Court has noted. The court also directed the passport authorities to issue within two weeks a police clearance certificate (PCC) to a man, who has pending criminal cases and needs to submit a document to Canadian authorities to set up a business there.
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NEW DELHI: The Delhi High Court emphasized that the mere existence of a pending criminal case does not automatically disqualify a person from pursuing long-term opportunities abroad. In a significant ruling, the court directed the passport authorities to issue a police clearance certificate (PCC) within two weeks to a man with ongoing criminal cases, allowing him to meet Canadian authorities’ requirements to establish a business under the Start-up Visa Programme.
The court stressed the need to balance the petitioner’s rights with the authorities’ duties as a sovereign entity, ensuring fairness and transparency.
“This would provide complete transparency to the Canadian authorities for their assessment of his visa application. The PCC shall be issued in two weeks’ time from today,”
-Justice Sanjeev Narula stated in the order, passed on October 1.
The refusal to issue a PCC was solely based on pending First Information Reports (FIRs) against the petitioner, according to a report by the Delhi Police. However, the court clarified,
“The mere pendency of a criminal case does not automatically disqualify an individual from exercising his right to seek long-term opportunities abroad.”
The court further noted that while the Ministry of External Affairs is obligated to provide accurate information to foreign authorities, this responsibility should not
“unjustly curtail the petitioner’s right to apply for a long-term visa.”
The petitioner, an Indian national with a valid passport, approached the court after being denied a PCC. He needed this document to apply for a visa to set up a business in Canada. According to Canadian visa regulations, applicants must submit a PCC from their country of residence as part of the application process.
The petitioner was facing two FIRs registered in 2013, related to allegations by the Employees’ Provident Fund Organisation (EPFO). The EPFO claimed that the petitioner had deducted provident fund contributions from employees working at Delhi Metro Rail Corporation (DMRC) and NPL sites but failed to deposit the amount as required under the Employees’ Provident Funds and Miscellaneous Provisions Act.
The Regional Provident Fund Commissioner (RPFC) assessed a liability of Rs 7.48 lakh, which the petitioner paid in 2019.
The petitioner’s counsel argued that even if the PCC noted the pending FIRs, it would still allow him to fulfil the Canadian visa requirement. He emphasized that the inclusion of the pending FIRs on the PCC would not prejudice his right to travel abroad.
The court also acknowledged that a PCC typically certifies that the applicant does not have a criminal record, serving as an assurance from the State to foreign authorities. However, the regional passport office can issue a PCC only if it receives a “clear” police verification report. In this case, the court pointed out that the petitioner holds a valid passport and faces no travel restrictions. It asserted that his right to work and move freely must not be unjustly curtailed due to the pending FIRs.
This decision also touches upon the fundamental right under Article 19(1)(g) of the Indian Constitution, which guarantees citizens the right to practice any profession or engage in any trade or business. The court noted,
“The petitioner, like any other Indian citizen, holds the constitutional right to pursue any lawful business or trade both within and outside the country as permissible.”
The court acknowledged that the State has the authority to impose reasonable restrictions on fundamental rights under Article 19(6), but it ruled that denying a PCC due to the mere existence of pending FIRs is an “unreasonable restriction.”
The ruling further noted,
“It would be unjust to impose a blanket restriction on his efforts to secure a visa solely based on the pendency of a case.”
The court made it clear that issuing the PCC would not impact the ongoing criminal proceedings or provide any undue advantage to the petitioner. Thus, the petitioner’s pursuit of long-term opportunities abroad should not be hindered by the mere pendency of criminal cases.
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