Telangana High Court
Sri Satya Reddy Yallammagary vs The Union Of India on 13 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.3141 OF 2024
ORDER:
Heard Mr. Md. Arshad Ahmed, learned counsel appearing on behalf of the petitioner and Mr. T.Srujan Kumar Reddy, learned Standing Counsel for Central Government, appearing on behalf of the respondents.
2. The petitioner filed the present to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the inaction of the respondent No.2 in renewing the passport after submission of application as per the provisions of Passport Act vide Application Form vide ARN:22-1009176389, dated 12.08.2022, Old passport No. K1874760, File No.HY75C5068609322 as illegal, arbitrary, unconstitutional violative of Article 21 of the Constitution of India apart from being in violation of principles of natural justice and contrary to the provisions of Passport Act and Rules made thereunder, consequently direct the respondent No.2 to renew and release petitioner passport bearing Old Passport No.K1874760, File No. HY75C5068609322, dated 12.08.2022.
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3. The case of the petitioner, in brief, is that the petitioner herein has applied for renewal of passport bearing No.K1874760. The petitioner has submitted online application bearing No.HY75C5068609322 dated 12.08.2022 with respondent No.2 along with all the requisite documents and fees prescribed, with a request to renew the said passport. The same was not considered by the respondent on the ground that the petitioner is an accused in criminal cases vide C.C.No.262 of 2017 under Sections 270, and 284 IPC, C.C.No.1175 of 2019 under Section 374 Indian Penal Code and Sections 3, 7, 8, 14 of Child Labour Act and C.C.No.724 of 2020 under Section 374 of IPC, and Sections 3, 7, 8, 14 of Child Labour Act and on the file of I Additional Judicial Magistrate of First Class at Gadwal. Hence, the present Writ Petition.
4. Learned counsel appearing on behalf of the petitioner submits that the petitioner is an accused in C.C.No.262 of 2017 under Sections 270, and 284 IPC , C.C.No.1175 of 2019 under Section 374 Indian Penal Code and Sections 3, 7, 8, 14 of Child Labour Act and C.C.No.724 of 2020 under Section 374 of IPC, and Section 3, 7, 8, 14 of Child Labour Act and on 3 SN, J W.P. No.3141 of 2024 the file of I Additional Judicial Magistrate of First Class at Gadwal and the petitioner was falsely implicated in the said cases and the police filed Charge Sheets.
5. The learned Standing Counsel for Central Government, appearing on behalf of respondents, brings to the notice of this Court the written instructions, dated 13.02.2024 and in particular, paragraph Nos.2 and 7 of the said Written Instructions read as under:
02. "The file was processed with Pre Police verification and received adverse report stating that the petitioner is involved in Cr.No.02/2016 U/s.270, 284 IPC of Gadwal Rural PS, it is PT vide C.C.No.262/2017, case was posted on 10.10.2022 for accused examination and Cr.No.330/2017 U/s.374 IPC, Sec 3, 7, 8, 14 of Child Labour Act of Gadwal Rural PS, it is PT vide C.C.No.1175/2019 posted for notice to sureties on 30.11.2022 and Cr.No.329/2017 U/s.374 IPC Sec 3, 7, 8, 14 of Child Labour Act of Gadwal Rural PS, it is PT vide C.C.No.724/2020, posed for accused appearance on 01.08.2022."
07. This office can reconsider his application, subject to submission of acquittal order from the case or permission to travel abroad from the 4 SN, J W.P. No.3141 of 2024 same Hon'ble Court where the criminal case is still pending. In this regard, the Ministry of External Affairs Gazetter Notification vide GSR-
570(E) dated 25.08.1993."
PERUSED THE RECORD.
6. This Court under similar circumstances had passed orders in writ petitions directing the 2nd respondent-Regional Passport Authority to consider the application of the applicants thereunder seeking renewal of passport. The Respondent cannot refuse the renewal of passport of the petitioner on the ground of the pendency of the aforesaid criminal cases 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 in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation reported in 2020 Crl.L.J (SC) 572.
7. 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 5 SN, J W.P. No.3141 of 2024 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 Section 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 before the Apex Court.
8. 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:
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9. 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.7
SN, J W.P. No.3141 of 2024 Therefore, such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.
10. 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 and others, it is 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."
11. 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.
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12. 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:
"4.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.
5.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 9 SN, J W.P. No.3141 of 2024 refuse, renewal or to demand the surrender of a passport.
6. 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.
13. In view of the above, since this Court opines that mere pendency of criminal case is not a ground to decline renewal and release of passport. Further, taking into consideration 10 SN, J W.P. No.3141 of 2024 the submission of the learned counsel for the petitioner that the petitioner is ready to co-operate with the trial Court in concluding trial, therefore, the petitioner herein sought issuance of necessary directions to respondent for consideration of the application of the petitioner for renewal of passport. Thus, on the ground of pendency of the above criminal case, passport cannot be denied to the petitioner. 14 Learned counsel appearing on behalf of the respondent No.2 submits that petitioner failed to submit his explanation in response to the notice dated 17.11.2022 issued to the petitioner which pertains to certain clarifications in respect of the criminal cases pending against the petitioner. The learned counsel appearing on behalf of respondent No.2 submits that petitioner's application would be considered in accordance with law and appropriate orders passed on petitioner's application dated 12.08.2022 seeking renewal and release of passport of the petitioner vide Application Form vide ARN 22- 1009176389, dated 12.08.2022, old pass port No.K1874760, File No. HY75C5068609322, upon the petitioner submitting his explanation to the notice dated 17.11.2022 issued to the petitioner, which pertains to certain clarifications in respect of 11 SN, J W.P. No.3141 of 2024 the criminal cases pending against the petitioner, within a reasonable period.
15. In view of the aforesaid discussion, this writ petition is disposed of at the admission stage, directing the petitioner to submit petitioner's explanation to the show cause notice dated 17.11.2022 issued to the petitioner by the 2nd respondent herein within a period of one week from the date of receipt of the copy of the order and the respondents are directed to consider the application bearing HY75C5068609322 dated 12.08.2022 submitted by the petitioner seeking to renew and release the passport duly taking into consideration the explanation to be submitted by the petitioner in response to the show cause notice letter dated 17.11.2022 issued to the petitioner within the time stipulated by this Court duly taking into consideration the view taken by the High Courts and Supreme Court in all the Judgments referred to and extracted above without reference to the pendency of the proceedings in C.C.No.262 of 2017 under Sections 270, and 284 IPC, C.C.No.1175 of 2019 under Section 12 SN, J W.P. No.3141 of 2024 374 Indian Penal Code and Sections 3, 7, 8, 14 of Child Labour Act and C.C.No.724 of 2020 under Section 374 of IPC, and Sections 3, 7, 8, 14 of Child Labour Act on the file of I Additional Judicial Magistrate of First Class at Gadwal within a period of one week on receipt of the petitioner's explanation to the show cause notice letter dated 17.11.2022 issued to the petitioner by the 2nd respondent herein, subject to the following conditions:-
(i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.262/2017 under Section 270, 284 IPC (for short 'IPC'), C.C.No.1175 of 2019 under Section 374 Indian Penal Code Section 3, 7, 8, 14 of Child Labour Act and C.C.No.724 of 2020 under Section 374 of IPC, Section 3, 7, 8, 14 of Child Labour Act and on the file of I Additional Judicial Magistrate of First Class at Gadwal, stating that he will not leave India during pendency of the said C.Cs. without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said C.Cs.;
(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;13
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(iii) The petitioner herein shall submit certified copy of aforesaid undertaking before the Respondent-Passport Officer for renewal 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 renewal of his passport in accordance with law, within two (03) weeks from the date of said application;
(v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the trial Court in C.C.No.262/2017 and CC.No.1175 of 2019 and C.C.No.724 of 2020; and
(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. As a sequel, miscellaneous petitions, if any, pending in the writ petition shall also stand closed. No order as to costs.
__________________________ MRS JUSTICE SUREPALLI NANDA Date: 13th February, 2024 Fm 14 SN, J W.P. No.3141 of 2024 378 HON'BLE MRS JUSTICE SUREPALLI NANDA WRIT PETITION No.3141 of 2024 DATED:13.02.2024 fm