Telangana High Court
Mahendra Kumar Agarwal vs The Union Of India on 12 January, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.1160 OF 2024
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 to 3.
2. The petitioner approached the Court seeking prayer as under:
"to issue an appropriate Writ, Order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of the Respondent No.3 in not renewing the passport by keeping the application pending vide File No.HY2075995084723 dated 22.11.2023 is illegal, arbitrary and consequently direct the respondent No.3 to consider the application Dated 22.11.2023 vide File No. HY2075995084723 and renew the Petitioner's Passport bearing No.Z2979343 for a further period for 10 years and permit the petitioner to travel abroad forthwith and grant such other relief or reliefs as are deemed fit and proper under the facts and circumstances of the case."
3. The case of the petitioner in brief is that, petitioner herein has applied for renewal of passport bearing No. Z2979343 and is valid upto 16.04.2024. Accordingly, he has submitted online application bearing No. HY2075995084723 dated 22.11.2023 to the Regional Passport Officer, Secunderabad, along with all the requisite documents and fees prescribed, with a request to renew the said passport. The same was not considered by the respondents on the ground that, the petitioner is an accused in 2 SN, J W.P. No.1160 of 2024 criminal cases vide Cr.No.622 and 623 of 2019 before the Madhapur P.S. for offences under Sections 120-B, 403, 406, 409, 418 and 420 of IPC. It is the specific case of the petitioner that the said cases are at crime stage and the petitioner did not receive any summons in the said cases from the concerned Courts and pendency of the said cases cannot be a ground to deny renewal of passport to the petitioner. Aggrieved by the same, the petitioner filed the present Writ Petition.
4. It is contended by the learned counsel appearing on behalf of the petitioner that petitioner herein is an accused in Cr. Nos.622 and 623 of 2019 before the Madhapur P.S. for offences under Sections 120-B, 403, 406, 409, 418 and 420 of IPC and the said cases are for disputes related to properties and no agencies of the Government either Private or public are involved in the said criminal cases.
5. When the matter is taken up for hearing, it is represented by both the learned counsel for the petitioner as well as learned counsel representing Dy. Solicitor General of India that, the subject issue involved in the present writ petition is squarely covered by the orders passed by this Court in WP.No.4277 of 2023 and WP.No.32906 of 2023.
PERUSED THE RECORD.
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6. This court opines that mere pendency of criminal case against the petitioner cannot be a ground to deny renewal 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.
7. It is also relevant to note that the Apex Court in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation 1(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 1 . 2020 Crl.L.J. (SC) 572 4 SN, J W.P. No.1160 of 2024 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.
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:
"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."
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 5 SN, J W.P. No.1160 of 2024 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.
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 (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."
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 6 SN, J W.P. No.1160 of 2024 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.
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:
"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 7 SN, J W.P. No.1160 of 2024 pendency of a case/cases is not a ground to refuse, renewal or to demand the surrender of a passport.
13. 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 renewal of passport. Thus, on the ground of pendency of the above criminal case, passport cannot be denied to the petitioner.
14. In view of the aforesaid discussion, this writ petition is disposed of at the admission stage, directing the respondents to consider the application bearing No.HY2075995084723 dated 22.11.2023 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 Cr.No.622 and 623 of 2019 which are at crime stage and not received any summons from concern court, subject to the following conditions: 8
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i) The petitioner herein shall submit an undertaking along with an affidavit in Cr.No.622 and 623 of 2019 pending before concern L.B.Nagar Court, Ranga Reddy District, stating that he will not leave India during pendency of the said criminal cases without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said Criminal cases;
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 (03) weeks from the date of said application; 9
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v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the trial Court in Cr.No.622 and 623 of 2019; 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. 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 10 SN, J W.P. No.1160 of 2024 HON'BLE MRS JUSTICE SUREPALLI NANDA WRIT PETITION No.1160 of 2024 DATED:12.01.2024 ksl