Telangana High Court
Maheswaram Sandip Chandra, vs The Union Of India, on 28 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.4948 OF 2024
ORDER:
Heard Mrs.M.Raja Laxmi, learned counsel appearing on behalf of the petitioner and Mr. K.Mohan, learned counsel appearing on behalf of the respondents.
2. The petitioner approached this Court with the following prayer:
" ...to issue a writ order or direction, more particularly one in the nature of writ of mandamus by declaring the impugned letter dated 02.02.2024 bearing No.HYD/30/POL/PIC/112/2024 issued by the 2nd respondent through gmail on 13.02.2024 to impound petitioner's passport bearing No W3067547, as being illegal, arbitrary violative of principles of natural justice, violative of Article 14, 21 of the Constitution of India and consequently direct the Respondent No.2 to set aside the impugned letters dated 02.02.2024 bearing No. HYD/30/POL/PIC/112/2024, letter dated 30.07.2022 without impounding the passport and to pass..."
PERUSED THE RECORD.
3. It is the specific case of the petitioner that in response to the show cause notice dated 30.07.2022 issued by the 2nd respondent to the petitioner, the petitioner has submitted an explanation dated 28.01.2024, but however, the Passport 2 Authority after considering the same directed the petitioner vide its letter dated 02.02.2024, to surrender the petitioner's passport dated 21.07.2022, within 15 days. But however, the said orders stipulated that the passport facility would be restored to the petitioner on production of acquittal order or permission to travel abroad from the trial Court where the criminal proceedings are pending against the petitioner. The petitioner initially had received a notice dated 30.07.2022 calling upon the petitioner to submit petitioner's explanation to the notice dated 30.07.2022 stating that the petitioner herein is involved in Crime No.161 of 2018 under Sections 147, 148, 341, 307, 506 read with 149 UPC of P.S. Chivvemla, case was in PT vide SC No.32 of 2020 and Crime No.305 of 2018 under Sections 3(1)(r)(s) of SC/ST POA Act, 2015 of P.S.Suryapet-II Town, PT Vide S.C.No.416 of 2019 at ASJ Court, Suryapet, but however the petitioner had suppressed petitioner's involvement in the said crime and therefore, the petitioner was called upon therein through the said Show Cause notice to give a suitable explanation with regard to suppression of the said material information. The petitioner had submitted a detailed explanation dated 28.01.2024 to the notice dated 30.07.2022 issued to the petitioner however the 2nd 3 respondent without considering the same had issued the impugned letter dated 02.02.2024. Aggrieved by the same, the petitioner filed the present writ petition.
4. Learned counsel appearing on behalf of the petitioner submits that the respondents may be directed to reconsider the explanation of the petitioner submitted vide petitioner's explanation dated 28.01.2024 in response to the notice dated 30.07.2022, issued by the 2nd respondent.
5. This Court opines that pendency of the criminal case against an applicant seeking passport facilities cannot be a ground to deny issuance of Passport facilities to the said applicant or can be a reason to impound a passport. The explanation furnished by the petitioner in so far as it relates to suppression can be duly considered by the 2nd respondent in accordance to law.
6. 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 4 all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution of India."
7. 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.5
8. 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."
9. 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.
10. In the judgment dated 08.04.2022 of the Andhra Pradesh High Court reported in 2023 (4) ALT 406 (AP) in 6 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 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 7 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."
11. It is also relevant to note that the Apex Court reported in 2020 Crl.L.J. (SC) 572 in Vangala Kasturi Rangacharyulu case 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 8 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.
12. Taking into consideration the aforesaid facts and circumstances of the case and the law laid down by the Apex Court and other High Courts in the various Judgments (referred to and extracted above), the Passport Authority-2nd respondent herein, is directed to reconsider the explanation dated 28.01.2024, furnished by the petitioner in response to the show cause notice dated 30.07.2022 issued to the petitioner, by the 2nd respondent, in accordance to law, duly taking into consideration the law laid down by the Apex Court and 9 other High Courts in the various judgments (referred to and extracted above) and communicate the decision to the petitioner.
With the above said observations, the writ petition is disposed of. 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.
_________________ SUREPALLI NANDA,J Date: 28.02.2024 Yvkr