Telangana High Court
Vikhyath Reddy M vs Union Of India on 11 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.6271 OF 2024
ORDER:
Heard Mr. P.Shiva Reddy, learned counsel for the petitioner and also heard Smt. Mani Deepika, learned Standing Counsel for Central Government, appearing on behalf of respondent Nos.1 and 2.
2. The petitioner approached the Court seeking prayer as under:
"to issue a Writ/s, Order/s more particularly one in the nature of Writ of Mandamus declaring the rejection order dt. 31-01-2024 passed by the respondent No.2, as being illegal, arbitrary and violative of Article 19 of Constitution of India and consequently direct the respondents to issue passport to the petitioner and be pleased to pass such other order/s as this Hon'ble Court may deem fit and proper in the circumstances of the case."
3. The specific case of the petitioner in brief is that, petitioner completed his B.Tech from SRM University during May, 2022 with an intention to further pursue his education at abroad. Accordingly, the petitioner applied for passport vide File HY1065072614923.
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SN, J W.P. No.6271 of 2024 The specific case of the petitioner is that, the said application of the petitioner was rejected on the ground that criminal case is pending against the petitioner under Section 447, 427 IPC in which the petitioner is arrayed as accused No.3, and the offences alleged are trespass and damage to property as there are civil disputes with regard to share of land.
The 2nd respondent/Regional Passport Officer had issued rejection letter dated 31.01.2024 refusing the passport services to the petitioner under Section 5(2)(C) of the passport Act, 1967 read with section 6(2)(f) as there is a criminal case pending against the petitioner vide Cr.No.23 of 2023 registered under section 447, 427 IPC vide C.C.No.154 of 2023 pending on the file of Judicial First Class Magistrate at Parigi, Ranga Reddy District and since the same is coming up for trail(summons) on 09.01.2024. Challenging the said rejection letter dated 31.01.2024, the petitioner approached the Court by way of filing the present Writ petition. Hence, the petition.
4. The learned counsel appearing on behalf of petitioner contends that the petitioner submitted his detailed explanation to the 2nd respondent to the notice dated 03.01.2024 issued to the petitioner and inspite of receipt of the said representation the 2nd respondent authority took a decision to refuse passport facility to 3 SN, J W.P. No.6271 of 2024 the petitioner and issued impugned rejection notice, dated 31.01.2024.
5. The learned counsel for the petitioner further contends that, respondents cannot refuse the issuance of passport facilities to 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.
PERUSED THE RECORD.
6. This court opines that pendency of criminal case against the petitioner cannot be a ground to deny issuance of Passport facilities to the petitioner and the right to personal liberty of the petitioner would include not only the right to travel abroad but also the right to possess a Passport.
7. It is relevant to note that the Respondents cannot refuse issuance of passport services to the petitioner on the ground of the pendency of the aforesaid criminal cases 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 in 4 SN, J W.P. No.6271 of 2024 Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation reported in 2020 Crl.L.J.(SC) 572.
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. Thus, the Apex Court directed the Passport Authority to issue the 5 SN, J W.P. No.6271 of 2024 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 Maneka 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 6 SN, J W.P. No.6271 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 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 7 SN, J W.P. No.6271 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.
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 8 SN, J W.P. No.6271 of 2024 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 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 refuse passport 9 SN, J W.P. No.6271 of 2024 facilities to the petitioner. Further, the petitioner herein 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 petitioner's detailed explanation for issuance of passport facilities to the petitioner for the purpose of continuing petitioner's higher studies at aboard. Thus, on the ground of pendency of the above criminal case, passport cannot be denied to the petitioner.
15. In view of the aforesaid discussion, this writ petition is disposed of at the admission stage, directing the petitioner herein to submit a detailed explanation to the Notice dated 31.01.2024 issued by the 2nd respondent within a period of two (02) weeks from the date of receipt of the copy of the order and upon the receipt of the said explanation the 2nd respondent passport officer shall consider the petitioner's application, dated 15.11.2023, in accordance to law, within a period of three(03) weeks thereafter duly taking into consideration the law laid down by the Supreme Court and other High Courts in all the Judgments referred to and extracted above without reference to the pendency of the 10 SN, J W.P. No.6271 of 2024 proceedings in C.C. No.154 of 2023, subject to the following conditions:
i) The petitioner herein shall submit an undertaking along with an affidavit in C.C. No. 154 of 2023, pending on the file of Judicial First Class Magistrate at Parigi, Ranga Reddy District, stating that the petitioner 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 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;
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SN, J W.P. No.6271 of 2024
v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the trial Court in C.C. No.154 of 2023; 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. As a sequel, miscellaneous petitions, if any, pending in the writ petition shall also stand closed. There shall be no order as to costs.
__________________________ MRS JUSTICE SUREPALLI NANDA Date:11th March, 2024 ksl.