Telangana High Court
Mohammad Minhazuddin vs Union Of India on 20 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.3029 OF 2024
ORDER:
Heard Mr. B.Nageshwar Rao, learned counsel for the petitioner and Mrs.Rajyalaxmi, learned Assistant Solicitor General of India, representing Dy. Solicitor General of India, appearing on behalf of respondent Nos.1 to 4.
2. The case of the petitioner in brief is that, the petitioner herein had applied for renewal of passport vide online application bearing Ref.No.23-200290442 dated 18.07.2023 to passport No.V4063653 made through the Consulate General of India, at Chichago, USA to the 2nd respondent - Regional Passport Officer, Secunderabad, along with all the requisite documents and fees prescribed, with a request to renew the passport. Without considering the said online application, the respondent Nos. 2 and 3 have issued intimation through mail stating that petitioner has to secure clearance of the petitioner case in the Court of law, in which the petitioner is accused in Crl.M.P.No.439 of 2019 pending on the file of Judicial Magistriate of First Class at Nalgonda vide Cr.No.25 of 2018 of PS Nalgonda Town. Hence, the present Writ Petition.
3. It is contended by the learned counsel appearing on behalf of the petitioner that petitioner herein is an accused in criminal case vide Crl.M.P.No.439 of 2019 pending on the file of Judicial 2 SN, J W.P. No.3029 of 2024 Magistriate of First Class at Nalgonda vide Cr.No.25 of 2018 of PS Nalgonda Town and the petitioner has filed quash petition before this Court vide Cr.l.P.No.1581 of 2021 and vide order dated 25.0.2021 the Hon'ble Court dispensed the presence of the petitioner, pending disposal of criminal petition. Therefore, the petitioner sought to issue necessary directions to the respondents for consideration of the petitioner's application for renewal of passport.
4. The learned counsel for the petitioner further contends that, respondents cannot refuse the issuance 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.
5. The learned counsel representing Dy. Solicitor General of India, brings on record the Written instructions vide No.HYD/843/28(53)/POL/LC/2024 UE707501 8358523, dated 06.02.2024 and in particular paragraph nos.2 to 7 of the said Written instructions read as under:
2. Also to mention that the Petitioner was issued his initial Passport bearing No.U6696254 dated 04.02.2020 with validity upto 03.02.2022 on submission of permission from the trial Court of the Judicial Magistrate of First Class at Nalgonda 3 SN, J W.P. No.3029 of 2024 vide Crl.M.P.No.439 of 2019 in Cr.No.25 of 2018 of PS Nalgonda-I Town.
3. In continuation to the Passport bearing No.U6696254 dated 04.02.2020 the Petitioner obtained permission from the trial Court of the Judicial Magistrate of First Class at Nalgonda vide Crl.M.P.No.403 of 2021 in C.C. No.1225 of 2021 in Cr.No.25 of 2018 of PS Nalgonda I Town. In compliance to the said order, this office has issued new Passport bearing No.V4063653 dated 11.11.2021 with two years validity upto 10.11.2023.
4. It is submitted that admittedly there is pending criminal case, whenever such pendency is brought to the notice of the Passport Issuing Authority, provisions of Section 6(2)(f) of the Passports Act, 1967 are attracted which are reproduced herein under for ready reference of this Hon'ble Court:
Section 6 (2) of the Act - Subject to the other provisions of this Act, the Passport authority shall refuse to issue a Passport or a travel document for visiting any foreign country under clause (C) of Sub-
Section (2) of Section 5 on any one or more the following grounds, and on no other ground, namely
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court of India".
5. That, the same has further been clarified in the Office Memorandum bearing No. Vl/401/1/5/2019 dated 10-10-2019 issued by the Joint Secretary (PSP) & Chief Passport Officer, PSP Division, Ministry of External Affairs, Govt of India at its Para-5 (ix) that -
"If it is brought to the notice of the authority that an applicant has criminal proceedings arrayed against applicant may be advised to get NOC from all the concerned court(s)".4
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6. it is to mention that the present Passport of the Petitioner bearing No. V4063653 has expired its validity on 10-11-2023, the Petitioner has to approach the Consulate General of India at Chichago, USA for issue of Emergency Certificate under section 4 (2) (a) of the Passports Act, 1967 to travel to India and can apply from here for his re-issue of Passport alongwith permission from the court where the case is pending.
7. This office can reconsider his application, subject to submission of acquittal order from the case or permission to travel abroad from the same Hon'ble Court where the criminal case is still pending. In this regard, the Ministry of External Affairs Gazette Notification vide GSR-570(E) dated 25-08-1993."
PERUSED THE RECORD.
6. This court opines that pendency of criminal case against the petitioner cannot be a ground for not considering the petitioner's application vide File No.Ref.No.23-200290442, dated 18.07.2023 with reference to the pendency of criminal proceedings vide C.C.No.1225 of 2020 on the file of Spl. Judicial Magistrate of First Class(for Prohibition and Excise), at Nalgonda and the right to personal liberty would include not only the right to travel abroad but also the right to possess a Passport.
7. 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 5 SN, J W.P. No.3029 of 2024 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 1.
8. 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. 1 . 2020 Crl.L.J. (SC) 572 6 SN, J W.P. No.3029 of 2024 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.
9. 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."
10. 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 7 SN, J W.P. No.3029 of 2024 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.
11. 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:
"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."
12. 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 8 SN, J W.P. No.3029 of 2024 a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.
13. 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.
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.9
SN, J W.P. No.3029 of 2024 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."
14. In view of the above, this Court opines that mere pendency of criminal case is not a ground to decline renewal of passport. Further, the petitioner is ready to co-operate with the trial Court in concluding trial. Therefore, the petitioner herein sought issuance of necessary directions to respondents for consideration of the application of the petitioner for issuance of 10 SN, J W.P. No.3029 of 2024 passport. Thus, on the ground of pendency of the above criminal case, passport cannot be denied to the petitioner.
15. Taking into consideration the facts and circumstances of the case and in view of the aforesaid discussion, this writ petition is disposed of at the admission stage, directing respondents to consider the application bearing No.V4063653, dated:18.07.2023 submitted by the petitioner seeking to renew the passport 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 criminal case vide C.C.No.1225 of 2020 on the file of Spl. Judicial Magistrate of First Class(for Prohibition and Excise), at Nalgonda, subject to the following conditions:
i) The petitioner herein shall submit an undertaking along with an affidavit in criminal case vide C.C.No.1225 of 2020 on the file of Spl. Judicial Magistrate of First Class(for Prohibition and Excise), at Nalgonda,, stating that he will not leave India during pendency of the said C.C. without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said C.C.;11
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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 their 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 petitioners for renewal of passport in accordance with law, within three (03) weeks from the date of said application;
v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in criminal case vide C.C.No.1225 of 2020 on the file of Spl. Judicial Magistrate of First Class(for Prohibition and Excise), at Nalgonda,; 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. 12
SN, J W.P. No.3029 of 2024 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: 20th Febrauary, 2024 ksl