Telangana High Court
Aluri Venkata Sai Prasad vs Union Of India on 21 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.7399 OF 2024
ORDER:
Heard Mr. G.Vasantha Rayudu, learned counsel for the petitioner and Smt.G.Sampada, learned Standing Counsel for Central Government, appearing on behalf of the respondents.
2. The petitioner has approached the Court seeking the following relief:
"to issue writ order or direction more so a writ in the nature of Mandamus by declaring the action of the 2nd respondent in not renewing the petitioner's passport bearing No.J0256636 pursuant to the application vide file No.HY2073446639321 dated 9/7/2021 on the ground of pending criminal case vide C.C.No.1185 of 2020 u/s 420 IPC on the file of XXI Metropolitan Magistrate, Cyberabad Medchal Athevelli as illegal, arbitrary, unconstitutional and contrary to the provisions of Passports Act, 1967 and consequentially to direct the 2nd respondent to renew petitioner's passport bearing No.J0256636 pursuant to the application for renewal dated 9/7/2021 without reference to the said criminal case and and to pass such other order or orders as this Hon'ble Court may deems fit just and proper in the circumstances of the case."
SN,J WP_7399_2024 2 PERUSED THE RECORD.
3. The case of the petitioner in brief as per the averments made by the petitioner in the affidavit filed by the petitioner in support of the present writ petition is as follows:
The notice dated 16.07.2021 was issued to the petitioner calling upon the petitioner to furnish certain clarifications relating to issuance of passport facilities to the petitioner pertaining to the petitioner's involvement in Cr.No.228 of 2020 under Section 420 of IPC in Dundigal Police Station and in response to the notice dated 16.07.2021 issued by the respondent No.2, petitioner furnished detailed explanation dated 26.07.2021 to the respondent No.2 herein, however, the respondent No.2 without considering the said explanation, passed the impugned order on the same day i.e., on 26.07.2021 itself informing the petitioner that the Competent Authority decided to refuse the passport services to the petitioner under Section 5(2)(c) of the Passports Act, 1967, to be read with Section 6(2)(f), in view of the pending court case under Cr.No.228 of 2020 U/s.420 of IPC in Dundigal Police Station with C.C.No.1185 of 2020 pending trial on the file of the learned XXI Metropolitan Magistrate Judge, Cyberabad, Medchal, Athevelli and the petitioner was further informed vide SN,J WP_7399_2024 3 the impugned letter dated 26.07.2021 of the 2nd respondent that the 2nd respondent however would reconsider the application of the petitioner, if petitioner obtains permission to travel abroad from the same Court where the criminal case is still pending.
Aggrieved by the same, the present petition is filed. DISCUSSION AND CONCLUSION:
4. This court opines that pendency of criminal case against the petitioner cannot be a ground to deny issuance of Passport facilities to the petitioner since the right to personal liberty of the petitioner would include not only petitioner's right to travel abroad but also petitioner's right to possess or hold a Passport.
5. It is also relevant to note that the Respondents cannot refuse the renewal of passport of the petitioners on the ground of the pendency of the aforesaid criminal case against the petitioners 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.
SN,J WP_7399_2024 4
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) 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 SN,J WP_7399_2024 5 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."
8. 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 SN,J WP_7399_2024 6 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 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."
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 SN,J WP_7399_2024 7 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 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.
SN,J WP_7399_2024 8 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.
12. In the light of the discussion as arrived at as above and duly considering the view and observations of the Apex Court and other High Courts in the Judgments (referred to and extracted above), this Court opines that pendency of criminal case registered against the petitioner cannot be a ground to SN,J WP_7399_2024 9 deny or decline renewal or reissuance of passport facilities to the petitioner and further it is contended by the learned counsel appearing on behalf of the petitioner that the petitioner is ready and willing to cooperate with the trial Court in concluding the trial. Hence on the ground of pendency of criminal case or cases, reissuance/renewal of passport cannot be denied to the petitioner by the respondent No.2 herein.
13. Taking into consideration the aforesaid facts and circumstances of the case and in view of the aforesaid discussion, the writ petition is allowed, and the order impugned dated 26.07.2021 vide HY2073446339321 of the 2nd respondent is set aside. The 2nd respondent is directed to reconsider the explanation dated 26.07.2021 furnished by the petitioner in response to the notice dated 16.07.2021 issued by the 2nd respondent to the petitioner duly taking into consideration the view taken by the Supreme Court and the High Courts in all the Judgments (referred to and extracted above), and renew the passport of the petitioner within three (03) weeks from the date of receipt of the copy of the order, without reference to the pendency of the proceedings in C.C.No.1185 of 2020 on SN,J WP_7399_2024 10 the file of the Hon'ble XXI Metropolitan Magistrate Judge, Cyberabad, Medchal, Athevelli vide F.I.R.No.228 of 2020, subject to the following conditions:
i) The petitioner herein shall submit an undertaking along with an affidavit in criminal case vide C.C.No.1185 of 2020 on the file of the Hon'ble XXI Metropolitan Magistrate Judge, Cyberabad, Medchal Athevelli vide F.I.R.No.228 of 2020, stating that he 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 to law;
v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before SN,J WP_7399_2024 11 the trial Court in CC.No.1185 of 2020, vide FIR No.228 of 2020; 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 to 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: 21-03-2024 Lpd