Telangana High Court
Prashanth Kumar Gopishetty vs The Union Of India on 2 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.35064 OF 2023
ORDER:
Heard Mr.K.Venumadha, learned counsel for the petitioner and learned counsel representing Mr.Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing on behalf of respondents.
2. The prayer as sought for by the petitioner in the present writ petition reads as under:
"...to issue an order or direction more particularly one in the nature of writ of mandamus or any other appropriate writ declaring the action of the respondent No 2 authority in passing the orders in No HYD/30/POL/PIC/1030/2023 dated 20122023 directing the petitioner to surrender his passport bearing No Z7383982 dated 07082023 within 15 days failing which action will be initiated against the petitioner and further saying that the said authority has no objection to restore the passport of the petitioner on production of acquittal order from the concerned court is nothing but arbitrary illegal null and void and violative of principles of natural justice and also violative of Articles 14 and 21 of the Constitution of India Consequently set aside the 2 SN, J W.P. No.35064 of 2023 above said orders of the respondent No.2 authority..."
3. The case of the petitioner in brief is that the petitioner herein had applied for issuance of passport bearing No.Z7383982 dated 07.08.2023 to the 2nd respondent - Regional Passport Officer, Secunderabad. The same was not considered by the respondents on the ground that, the petitioner is accused in SC No.0700040/2016 on the file of Hon'ble VII Additional Sessions Judge's Court-cum-the Special Court for Trial of SC's and ST's (POA) Act, registered for the offences punishable under Sections 448, 427, 506, 323 read with Section 34 of IPC and under Section 3(1)(X) of Scheduled Casts and Scheduled Tribes (POA) Act, in Kushaiguda Police Station, in FIR No.350 of 2014.
Further it is the case of the petitioner that the 2nd respondent authority had issued proceedings No.HYD/30/POL/PIC/1030/2023 dated 20.12.2023, directing the petitioner to surrender his passport bearing No.Z7383982, dated 07.08.2023, within 15 days failing which action will be taken against the petitioner and further it is stated through the said proceedings dated 20.12.2023 that the 2nd respondent authority 3 SN, J W.P. No.35064 of 2023 has no objection to restore the passport facility to the petitioner on production of acquittal order. Hence the present writ petition.
4. Learned counsel appearing on behalf of the 2nd respondent - Regional Passport Authority, Secunderabad, brings on record the written instructions dated 02.02.2024, in particular, the relevant paras, read as under:
"2. The file was granted with Post Police Verification and a new Passport bearing No.Z7383982 dated 07.08.2023 validity upto 06.08.2033 was issued to the petitioner.
3. This office received adverse police verification report stating that the petitioner is involved in C.C.No.SC/0700040/2016 U/s 448, 427, 506, 323 R/w 34 IPC and Sec 31 of SC/ST POA Act in Kushaiguda PS vide FIR No.350/2014 at 7th Sessions Court for trial of SC/ST cases, District Court, Ranga Reddy.
4. This office has issued a show cause notice dated 02.12.2023 to furnish his explanation for suppression of information regarding his pending case in his online application. The suppression attracts Section 10(3)(b) of the Passports Act, 1967.
5. This office received a reply from the petitioner letter dated 07.12.2023 stating that he felt the case registered against him is only a civil dispute and no need to give the 4 SN, J W.P. No.35064 of 2023 details and it happened by clerical mistake and not intentionally suppressed the information."
5. Learned counsel appearing on behalf of the petitioner submits that in response to the show cause notice dated 02.12.2023, the petitioner submitted an explanation dated 07.12.2023 and contends that there had been no deliberate suppression on the part of the petitioner and further in view of the fact that the said case SC No.0700040/2016 is an offshoot of a civil dispute and further there is an injunction order in favour of the petitioner and as against the person at whose instance the said criminal case SC No.0700040 of 2016 had been initiated. Further in view of the fact that as it is only a civil dispute, the petitioner due to inadvertence did not give particulars about the said case and that it was not in deliberate suppression by the petitioner. Without considering the explanation of the petitioner the order impugned dated 20.12.2023 had been passed.
6. The order impugned dated 20.12.2023 passed by the 2nd respondent, reads as under:
"This refers to your explanation letter in response to the show cause notice dated 02.12.2023 issued to you.
2. In this regard, you are hereby directed to surrender your passed bearing No.Z7383982 dated 07.08.2023 5 SN, J W.P. No.35064 of 2023 within 15 days, failing which necessary action will be initiated in accordance with the sections 10(3)(b) & (e) of the Passport Act, 1967 without further notice.
3. However, this office has no objection to restore passport facilities to you on production of acquittal order or permission to travel abroad from the trial Court where the criminal proceedings are pending against you."
PERUSED THE RECORD.
7. This court opines that pendency of criminal case against the petitioner cannot be a ground to deny issuance of Passport to the petitioner and the right to personal liberty would include not only the right to travel abroad but also the right to possess a Passport.
8. It is also relevant to note that the Respondents cannot refuse the renewal of passport of the petitioner on the ground of the pendency of the aforesaid criminal case against the petitioner and the said action of the respondents is contrary to the procedure laid down under the Passports Act, 1967 and also the principle laid down by the Hon'ble Supreme Court reported in 2020 Crl.L.J. (SC) 572 in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation.
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9. It is also relevant to note that the Apex Court in Vangala Kasturi Rangacharyulu (supra) had an occasion to examine the provisions of the Passports Act, 1967, pendency of criminal cases and held that refusal of a passport can be only in case where an applicant is convicted during the period of five (05) years immediately preceding the date of application for an offence involving moral turpitude and sentence for imprisonment for not less than two years. Section 6.2(f) relates to a situation where the applicant is facing trial in a criminal Court. The petitioner therein was convicted in a case for the offences under Sections 420 IPC and also Section 13(2) read with Section 13(1) of the Prevention of Corruption Act, 1988, against which, an appeal was filed and the same was dismissed. The sentence was reduced to a period of one (01) year. The petitioner therein had approached the Apex Court by way of filing an appeal and the same is pending. Therefore, considering the said facts, the Apex Court held that Passport Authority cannot refuse renewal of the passport on the ground of pendency of the criminal appeal. Thus, the Apex Court directed the Passport Authority to issue the passport of the applicant without raising the objection relating to the pendency of the aforesaid criminal appeal in S.C. 7 SN, J W.P. No.35064 of 2023
10. The Apex Court in another judgment reported in 2013 (15) SCC page 570 in Sumit Mehta v State of NCT of Delhi at para 13 observed as under:
"The law presumes an accused to be innocent till his guilt is proved. As a presumable innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution of India."
11. The Apex Court in Menaka Gandhi vs Union of India reported in 1978 (1) SCC 248, held that no person can be deprived of his right to go abroad unless there is a law enabling the State to do so and such law contains fair, reasonable and just procedure. Para 5 of the said judgment is relevant and the same is extracted below:
"Thus, no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports, Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who 8 SN, J W.P. No.35064 of 2023 with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law.
Therefore, such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.
12. The Division Bench of the Apex Court in its judgment dated 09.04.2019 reported in 2019 SCC online SC 2048 in Satish Chandra Verma v Union of India (UOI) and others observed at para 5 as under:
"The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage, family and friendship which are the basic humanities which can be affected through refusal of freedom to go abroad and this freedom is a genuine human right."
13. Referring to the said principle and also the principles laid down by the Apex Court in several other judgments, considering the guidelines issued by the Union of India from time to time, the Division Bench of High Court of Punjab and Haryana at Chandigarh in Noor Paul Vs. Union of India reported in 2022 SCC online P & H 1176 held that 9 SN, J W.P. No.35064 of 2023 a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.
14. In the judgment dated 08.04.2022 of the Andhra Pradesh High Court reported in 2023 (4) ALT 406 (AP) in Ganni Bhaskara Rao Vs. Union of India and another at paras 4, 5 and 6, observed as under:
"This Court after hearing both the learned counsel notices that Hon'ble Supreme Court of India, in Criminal Appeal No. 1342 of 2017, was dealing with a person, who was convicted by the Court and his appeal is pending for decision in the Supreme Court. The conviction I was however stayed. In those circumstances also it was held that the passport authority cannot refuse the "renewal" of the passport.
This Court also holds that merely because a person is an accused in a case it cannot be said that he cannot "hold" or possess a passport. As per our jurisprudence every person is presumed innocent unless he is proven guilty. Therefore, the mere fact that a criminal case is pending against the person is not a ground to conclude that he cannot possess or hold a passport. Even under Section 10 (d) of the Passports Act, the passport can be impounded only if the holder has been convicted of an offence involving "moral turpitude" to imprisonment of not less than two years. The use of the conjunction and makes it clear that both the ingredients must be present. Every conviction is not a ground to impound the passport. If this is the situation post- conviction, in the opinion of this Court, the pendency of a case/cases is not a ground to 10 SN, J W.P. No.35064 of 2023 refuse, renewal or to demand the surrender of a passport.
The second issue here in this case is about the applicability of Section 6(2)(e) of the Passport Act. In the opinion of this Court that section applies to issuance of a fresh passport and not for renewal of a passport. It is also clear from GSR 570(E) which is the Notification relied upon by the learned counsel for the respondents and is referred to in the counter affidavit. This Notification clarifies the procedure to be followed under Section 6 (2) of the Passport Act against a person whom the criminal cases are pending. This notification permits them to approach the Court and the Court can decide the period for which the passport is to be issued. This is clear from a reading of the Notification issued. Clause (a) (i) states if no period is prescribed by the Court the passport should be issued for one year. Clause (a) (ii) states if the order of the Court gives permission to travel abroad for less than a year but has not prescribed the validity period of the passport, then the passport should be for one year. Lastly, Clause (a) (iii) states if the order of the Court permits foreign travel for more than one year but does not specify the validity of the passport, the passport should be issued for the period of travel mentioned in the order. Such a passport can also be renewed on Court orders. Therefore, a reading of GSR 570(E) makes it very clear that to give exception or to exempt applicants from the rigour of Section 6 (2)(f) of the Act, GSR 570(E) has been brought into operation. The issuance of the passport and the period of its validity; the period of travel etc., are thus under the aegis of and control of the Court."
15. In view of the above, this Court opines that mere pendency of criminal case is not a ground to decline issuance of passport. Further, the petitioner is ready to co-operate with the trial Court in concluding trial. Therefore, the petitioner herein 11 SN, J W.P. No.35064 of 2023 sought issuance of necessary directions to respondents for consideration of the application of the petitioner for issuance of passport. Thus, on the ground of pendency of the above criminal case, passport cannot be denied to the petitioner.
16. The show cause notice issued to the petitioner dated 02.12.2023 indicates that on the ground of suppression of the material information in the petitioner's passport application pertaining to SC/0700040/2016 and FIR No.350 of 2014 registered against the petitioner, the order impugned had been passed. This Court opines that the pendency of the said case cannot be a ground to impound the passport and the petitioner explained the circumstances in which the petitioner did not furnish the details pertaining to the case, registered against the petitioner vide his explanation dated 07.12.2023 which apparently had not been considered by the passport authority, because the order impugned dated 20.12.2023 neither refers to the pleas put forth by the petitioner in his explanation dated 07.12.2023 nor indicates any discussion on record evidencing the explanation of the 12 SN, J W.P. No.35064 of 2023 petitioner dated 07.12.2023 having been considered by the 2nd respondent herein.
17. Taking into consideration the aforesaid facts and circumstances of the case and also the law laid down by the Apex Court and other High Courts Judgments (referred to and extracted above), the order impugned dated 20.12.2023 is set aside and the 2nd respondent is directed to consider the explanation dated 07.12.2023 furnished by the petitioner in response to the show cause notice dated 02.12.2023 issued by the 2nd respondent, duly taking into consideration the view taken by the Apex Court and other High Courts Judgments referred to and extracted above, within a period of two (02) weeks from the date of receipt of a copy of the order and pass appropriate reasoned order in accordance to law and duly communicate the decision to the petitioner. Till the above exercise as indicated above is initiated and concluded, the 2nd respondent is directed not to insist for surrender of petitioner's passport bearing No.Z73833982, dated 07.08.2023.
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18. With the above said observations, the writ petition is disposed of. However there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the writ petition shall also stand closed.
__________________ SUREPALLI NANDA,J Date:02.02.2024.
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