Telangana High Court
Nithya Reddy vs Union Of India on 12 January, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.32735 OF 2023
ORDER:
Heard learned counsel for the petitioner and also heard learned Counsel representing Dy. Solicitor General of India, appearing on behalf of respondent Nos.1 and 2.
2. The case of the petitioner in brief is that, when the petitioner was minor, her parents applied for her passport and she was initially issued a passport bearing No.YN75434 on 02.04.1987 by the respondent No.2, which was later renewed on 19.12.1997, with new Passport as No.A4574573 in accordance with the provisions of the Passport Act, 1967 and both the passports along with educational certificates were under the care of the petitioner's father.
The petitioner herein further submitted that, after petitioner's marriage and relocation to New Delhi in the year 2002, the petitioner's father continued to be in possession of her passport and educational documents. The petitioner's father passed away in the year 2005 and in the year 2007 when the petitioner intended to travel, she discovered that her documents were missing/misplaced at her parents' house. Upon realizing the same, the petitioner filed FIR on 11.11.2008. 2
SN, J W.P. No.32735 of 2023 The petitioner further averred that, when the documents including passport were not traceable by the petitioner, the petitioner undertook the process of re-issuance of passport through a Broker based in Delhi and the petitioner received Passport No.H3069433 dated 30.01.2009, same was renewed on 19.07.2013 and the current passport is numbered as Z2620295. In the year 2018 the petitioner shifted back to Hyderabad upon being re-located to Hyderabad, the petitioner filed an Application No.HY2073974027522 dated 22.02.2022 to change her address from New Delhi to Hyderabad and also the petitioner issued a letter dated 24.02.2022 to respondent No.2 requesting for re- issuance of passport with the required address change and also notified about the loss of all her certificates. The same was not considered by the respondent on the ground that, the petitioner is an accused in criminal cases vide Cr.No.06 of 2007 before CCB & CB CID Court and in Charge sheet vide CC.No.5145 of 2023 and the petitioner had received summons from the concerned Court in Chennai and petitioner marked her appearance before the concerned Court and the NBW was recalled by the said Court. Hence, the present Writ Petition.
3. It is contended by the learned counsel appearing on behalf of the petitioner that, the case pending against the petitioner before the concerned Court at Chennai pertains to certain loan 3 SN, J W.P. No.32735 of 2023 that petitioner's husband along with the petitioner had taken from S.Behari Lal and the same was repaid with interest in timely manner. The Counsels in Chennai are taking all steps to ensure that the proceedings against the petitioner are discontinued and further submitted that the petitioner has been wrongly and unalwfully implicated in to the said case filed against the petitioner herein. The said submission of learned counsel for the petitioner is not disputed by the learned counsel appearing on behalf of respondents.
PERUSED THE RECORD.
4. This court opines that pendency of criminal case against the petitioner cannot be a ground to deny issuance of Passport 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 Respondent 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 respondent 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 1.
1 . 2020 Crl.L.J. (SC) 572 4 SN, J W.P. No.32735 of 2023
5. 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. 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 SN, J W.P. No.32735 of 2023
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 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 6 SN, J W.P. No.32735 of 2023 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.
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 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."
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.
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SN, J W.P. No.32735 of 2023
10. 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.8
SN, J W.P. No.32735 of 2023
11. In view of the above, this Court opines that mere pendency of criminal case is not a ground to decline renewal of passport. Further, in view of the submission of the learned counsel for the petitioner that, the Counsels in Chennai are taking all steps to ensure that the proceedings against the petitioner are discontinued in concerned court at Chennai. Therefore, the petitioner herein sought issuance of necessary directions to respondent for consideration of the application of the petitioner for renewal of passport with required address change. Thus, on the ground of pendency of the above criminal case, passport cannot be denied to the petitioner.
12. In view of the aforesaid discussion, this writ petition is disposed of at the admission stage, directing the respondent No.2 to consider the application bearing No.HY2073974027522 dated 22.02.2022 submitted by the petitioner seeking to renew the passport with required address change 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.5145 of 2023, subject to the following conditions:
i) The petitioner herein shall submit an undertaking along with an affidavit in Cr.No.06 of 2007, pending 9 SN, J W.P. No.32735 of 2023 on the file of CCB & CB CID Court, Chennai in Chargesheet vide C.C. No.5145 of 2023, stating that she 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.;
ii) On filing such an undertaking as well as affidavit, the CCB & CB CID Court, Chennai 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 her 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 her 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 CCB & CB CID Court, Chennai in C.C. No. 5145 of 2023; and 10 SN, J W.P. No.32735 of 2023
vi) However, liberty is granted to the petitioner herein to file an application before the CCB & CB CID Court, Chennai seeking permission to travel aboard and it is for the said 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: 12th January, 2024 ksl