Telangana High Court
Punreddy Narender Reddy, vs The Union Of India, on 22 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.4023 OF 2024
ORDER:
Heard Mr Pulla Rao Yellanki, learned counsel for the petitioner and Mr Gadi Praveek Kumar, learned Deputy Solicitor General of India appearing on behalf of the respondents.
2. The prayer as sought for by the petitioner in the present writ petition reads as under:
".........to issue an appropriate Writ Order or Direction more particularly one in the nature of Writ of Mandamus to declare the action of the 2rd Respondent in issuing show cause notice dated 2312024 calling for explanation and surrender of pass port bearing No B 9123987 on the ground that adverse police verification report is against the petitioner that he was involved in 8 criminal cases those are 1) Crime No 179 of 2014 2) Crime No 175 of 2015 3) Crime No 129 of 2018 4) Crime No 130 of 2018 5) Crime No 128 of 2019 6) Crime No 149 of 2019 7) Crime No 30 of 2016 and 8)Crime No 72 of 2023 which was not registered against him on the file of the P S Chinthapally, Nalgonda District is as illegal arbitrary unjust violation of principles of natural justice and violation of articles 14 15 16 and 21 of the Constitution of India and consequently set aside the impugned show cause notice dated 2312024 issued by the 2nd respondent and to pass such other Order or Orders as this Hon'ble Court may deem fit and proper in the interest of justice."2
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3. When the matter is taken up for hearing, learned counsel on record represented that the subject matter in this writ petition is squarely covered by the order passed by this Court in W.P.No.32225 of 2023, dated 23.11.2023. PERUSED THE RECORD.
4. It is the specific case of the petitioner that petitioner received show cause notice dated 23.01.2024 calling upon the petitioner to furnish certain clarification regarding issuance of passport facility to the petitioner and the relevant portion of the show cause dated 23.01.2024 reads as under:
"This is in reference to receipt of the Police Verification report corresponding to your application for Passport reissue, with file number HY2076167749124, dated 16/01/2024. You may recall that a passport bearing passport number B9123987, dated 16.01.2024 was dispatched to you by this office on the basis of your application dated 16.01.20224.
Police verification report is not clear, a criminal case is pending against your, the report is received with remark "The applicant involved in 8 cases vide, 1). Cr No. 179/2014, 2). 175/2015, 3).129/2018,
4).130/2018, 5).128/2019, 6).149/2019 all cases of Chintapally Police Station limits, all cases stage is PT(Pending Trial at JFCM Devarakonda and 7) Cr.No.30/2016 & 8) 72/2023 of Chinthapally Police Station, both cases stage are Under Investigation for collection of evidence. Hence. Not recommended..
Therefore, This Show Cause Notice is issued to you. You are advised to SURRENDER your passport and get 3 SN, J W.P. No. 4023 of 2024 your police verification cleared soon. The Passport will be dispatched again on receipt of clear Police report. In view of the above police remark, you are requested to submit proof of clearance of the case and your clarification to the Enquiry officer of the Regional Passport Office, Hyderabad within 30 days with online appointment for enquiry or walk- in on Thursday only (working day) between 9.30 AM to 12.30 PM.
While going to the Passport office, do not forget to carry the passport, original documents and their photocopies along with the application form. NOTE- If this Show cause Notice is not responded to, your Passport can be impounded under Section 12(1)(b) of the Passport Act, 1987".
5. 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.
6. 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) 4 SN, J W.P. No. 4023 of 2024 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. 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."5
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8. 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.
9. 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:
6
SN, J W.P. No. 4023 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."
10. 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.
11. 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.7
SN, J W.P. No. 4023 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 8 SN, J W.P. No. 4023 of 2024 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."
12. In view of the above, this Court opines that mere pendency of criminal case is not a ground to decline issuance of passport facilities to the petitioner. 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 passport. Thus, on the ground of pendency of the above criminal case, passport cannot be denied to the petitioner.
13. The petitioner instead of furnishing the explanation to the show cause notice 23.01.2024 approached this Court by filing the present writ petition stating that pendency of the criminal case is not a ground to renew the passport of the petitioner or to impound the passport of the petitioner. This Court opines that pendency of criminal case against the petitioner cannot be a ground to deny Passport facilities 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. The petitioner rushed to this Court hastily without submitting explanation to the 9 SN, J W.P. No. 4023 of 2024 show cause notice dated 23.01.2024 issued to the petitioner. The learned counsel appearing on behalf of the passport Authority submits that the petitioner should be directed to furnish petitioner's explanation to the show cause notice dated 23.01.2024 issued to the petitioner within a reasonable period.
14. Taking into consideration the aforesaid facts and circumstances, this writ petition is disposed of, at the admission stage directing the petitioner to submit explanation to the show cause notice dated 23.01.2024 issued to the petitioner by the 2nd respondent herein, within a period of one week, from the date of receipt of a copy of this order and upon the 2nd respondent receiving the said explanation furnished by the petitioner in response to the said show cause notice dated 23.01.2024 issued to the petitioner by the 2nd respondent herein within the time period stipulated by this Court in the present order, the respondent No.2 shall consider the same, in accordance to law, duly considering the law laid down in the various judgments (referred to and extracted above) and pass appropriate orders, within a period of two weeks, thereafter, duly communicating the decision to the petitioner subject to the following conditions: 10
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i) The petitioner herein shall submit an undertaking along with an affidavit in 1) Crime No 179 of 2014 2) Crime No 175 of 2015 3) Crime No 129 of 2018 4) Crime No 130 of 2018 5) Crime No 128 of 2019 6) Crime No 149 of 2019 7) Crime No 30 of 2016 and
8)Crime No 72 of 2023 which was not registered against him on the file of the P S Chinthapally, Nalgonda District 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 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;
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 (02) 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 the above crimes ; and
vi) However, liberty is granted to the petitioner herein to file an application before the trial Court seeking 11 SN, J W.P. No. 4023 of 2024 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: 22nd February, 2024 Note C.C. Tomorrow.
B/o Skj 12 SN, J W.P. No. 4023 of 2024 HON'BLE MRS JUSTICE SUREPALLI NANDA 13 SN, J W.P. No. 4023 of 2024 WRIT PETITION No. 4023 of 2024 DATED: 22.02.2024 Skj