Telangana High Court
Srinivasulu Katam vs The Union Of India on 5 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.2766 OF 2024
ORDER:
Heard Mr.Erigi Ganesh, learned counsel appearing on behalf of the petitioner and Mr.Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing on behalf of respondent Nos.1 and 2.
2. The petitioner has filed the present writ petition seeking the following relief:
"to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the 2nd respondent in not issuing the passport to petitioner pursuant to the application Vide File number HYC065658815123, dated 08/08/2023, on the ground the petitioner is involved in three (03) cases Vide Cr.no. 71 of 2020 U/s 341,323,504,506 IPC of Chandur Police Station (CC.No. 859 of 2020, it is in PT at Spl Mobile court Nalgonda), Cr. No. 138 of 2019 under section 341,504,506, r/w 34 IPC (CC No. 251 of 2020) and Cr. No. 160 of 2019 U/s. 341,323,504, r/w 34 IPC (CC. No. 253 of 2020) as illegal, arbitrary, un constitutional, in violation of Principles of Natural Justice and contrary to the Provisions of the Pass Port Act 1967, and Consequently direct the 2nd respondent to issue passport to petitioner pursuant to the application dated 08/08/2023 without reference to the pending criminal cases and the letter of the 2nd respondent dated 19/02/2023 and pleased to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
The case of the petitioner is that the petitioner made an online application for issuance of passport vide File number 2 SN, J W.P. No.2766 of 2024 HYC065658815123, dated 08.08.2023 by paying necessary fee. However, the said application was refused vide letter dated 09.12.2023 on the ground that 3 cases namely CC.No.859/2020, CC.No.25/2020 and CC.No.253/2020 are pending against him. In spite of several requests made by the petitioner, no action has been taken on the said representation till date. Aggrieved by the same, the petitioner has filed the present writ petition.
3. It is contended by the learned counsel appearing on behalf of the petitioner that though the petitioner herein is arrayed as an accused in the above said cases, he is not even convicted in the said case, therefore, the respondent authorities cannot refuse for issuance of passport to the petitioner on the ground of the pendency of the aforesaid criminal cases against the petitioner and the said action of the respondent authorities 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.
4. 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 3 SN, J W.P. No.2766 of 2024 (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 renew the passport of the applicant without raising the objection relating to the pendency of the aforesaid criminal appeal in S.C.
5. 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."4
SN, J W.P. No.2766 of 2024
6. 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 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.
7. 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 it is observed at para 5 as under: 5
SN, J W.P. No.2766 of 2024 "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."
8. 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 a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.
9. 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, it is 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.6
SN, J W.P. No.2766 of 2024 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 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 7 SN, J W.P. No.2766 of 2024 period of its validity; the period of travel etc., are thus under the aegis of and control of the Court."
10. In view of the above, this Court opines that mere pendency of criminal case is not a ground to decline issuance/ renewal of passport. Further, the petitioner is ready to co- operate with the trial Court in concluding the trial. Therefore, the petitioner herein sought issuance of necessary directions to the respondent authorities consideration of the application of the petitioner for issuance of passport.
11. In view of the aforesaid discussion, this writ petition is disposed of at the admission stage, directing respondent authorities for consideration of application vide File number HYC065658815123, dated 08.08.2023, submitted by the petitioner seeking for issuance of passport duly taking into consideration the view taken by the High Courts and Hon'ble Supreme Court in all the Judgments referred to and extracted above without reference to the pendency of the proceedings against the petitioner in CC.No.859/2020, CC.No.251/2020 and CC.No.253/2020, subject to the following conditions:
i) The petitioner herein shall submit an undertaking along with an affidavit in CC.No.859 of 2020, CC 8 SN, J W.P. No.2766 of 2024 No.251 of 2020 and CC.No.253 of 2020., stating that he will not leave India during pendency of the said cases, without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said Criminal Cases.;
ii) On filing such an undertaking as well as affidavit, the trial Court shall issue a certified copy of the same within two (02) weeks therefrom;
iii) The petitioner herein shall submit certified copy of aforesaid undertaking before the Respondent-
Passport Officer for issuance of his passport;
iv) The Respondent-Passport Officer shall consider the said application in the light of the observations made by this Court herein as well as the contents of the undertaking given by the petitioner for issuance of his passport in accordance with law, within two (02) weeks from the date of said application;
v) On renewal of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in CC.No.859 of 2020, CC No.251 of 2020 and CC.No.253 of 2020; and 9 SN, J W.P. No.2766 of 2024
vi) However, liberty is granted to the petitioner herein to file an application before the trial Court seeking permission to travel aboard and it is for the trial Court to consider the same in accordance with law. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the writ petition shall also stand closed.
__________________________ MRS JUSTICE SUREPALLI NANDA Date: 5th February, 2024 HK 10 SN, J W.P. No.2766 of 2024 HON'BLE MRS JUSTICE SUREPALLI NANDA WRIT PETITION No.2766 of 2024 DATED:05.01.2024 HK