Telangana High Court
Mohammed Masooduddin vs The Regional Passport Officer on 21 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.322 OF 2024
ORDER:
Heard Mr.Vikar Ahmed, learned counsel for the petitioner and Mr.P.Shashidhar Reddy, learned Standing Counsel for Central Government, appearing on behalf of sole-respondent.
2. The petitioner approached the Court seeking the prayer as under:
"to issue any Writ, order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the action of Respondent in not processing the Petitioner's file vide File No.HY1074083693922 for renewal of Petitioner's Passport bearing No.J3471801 on the ground of FIR No.911/2018 U/s.420, 423, 468, 471 IPC & Sec.120(B) IPC on the file of P.S. Mailardevpally, Cyberabad Commissionerate, inspite of filing Charge Sheet vide CC.No.4007 of 2021 on the file of Hon'ble XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar, and the case is pending trial, as illegal, arbitrary and violation of principles of natural justice and consequently, direct the Respondent to process the Petitioner's file vide File No.HY1074083693922 and renew the Petitioner's Passport bearing No.J3471801 and pass such other order or orders as deemed fit and proper in the circumstances."2
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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:
a) The petitioner herein has obtained passport on 21.09.2010 and the same was issued by the Competent authority vide passport No.J3471801 which was valid up to 20.09.2020. On 31.03.2022 the petitioner applied for renewal of passport vide online application bearing No.HY1074083693922 dated 31.03.2022 of said passport bearing No.J3471801 to the 2nd respondent - Regional Passport Officer, Secunderabad, along with all the requisite documents and fees prescribed, with a request to renew the passport.
b) It is the specific grievance of the petitioner that, instead of renewing the petitioner's passport, the 2nd respondent had stopped processing the Petitioner's file vide letter dated 11.06.2022 in view of FIR No.911 of 2018, registered against the petitioner under Sections 420, 423, 468, 471 IPC and Section 120(B) of IPC, pending on the file of P.S. Mailardevpally, Cyberabad Commissionerate and sought certain clarifications from the petitioner pertaining to petitioner's involvement in the said cases. Whereas the Police had filed charge sheet vide C.C. 3 SN, J W.P. No.322 of 2024 No.4007 of 2021 pending on the file of XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar.
c) It is further the case of the petitioner that petitioner has nothing to do with the above case and the same has been foisted falsely against the petitioner and the same has been explained by the petitioner to the respondent and petitioner requested the respondent to renew the passport of the petitioner, but however, the respondent neither considered the request of the petitioner nor renewed the passport of the petitioner by processing the petitioner's file vide File No.HY1074083693922. Aggrieved by the said action of the respondent, the petitioner approached the Court by way of filing the present Writ petition. Hence, the writ Petition.
4. The learned counsel appearing on behalf of the petitioner submits that, the petitioner has nothing to do with the case filed against the petitioner and the petitioner had been falsely implicated in the said case and the respondent herein cannot keep application filed by the petitioner seeking renewal of passport pending on the ground of FIR registered against the petitioner on the file of P.S. Mailardevpally, Cyberabad Commissionerate.
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5. It is the further contention of the learned counsel appearing on behalf of the petitioner that, on the ground that petitioner herein is an accused in criminal case vide C.C.No.4007 of 2021 pending on the file of XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar, the renewal of petitioner's passport cannot be denied to the petitioner and the said action of the respondents is contrary to the procedure laid down under the Passports Act, 1967 and, therefore, the petitioner sought to issue necessary directions to the respondent for consideration of the petitioner's application dated 31.03.2022 for renewal of passport.
6. The learned Standing Counsel appearing on behalf of respondent/passport authority submits that, the petitioner instead of furnishing his explanation in writing to the letter dated 11.06.2022, approached this Court by filing the present Writ petition.
PERUSED THE RECORD.
7. This court opines that pendency of criminal case against the petitioner cannot be a ground for not considering the petitioner's application vide file bearing No. HY1074083693922 dated 31.03.2022 for renewal of passport bearing No. J3471801 since the right to 5 SN, J W.P. No.322 of 2024 petitioner's personal liberty would include not only the petitioner's right to travel abroad but also petitioner's right to possess a Passport.
8. It is also relevant to note that 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 reported in 2020 Crl.L.J (SC) 572.
9. 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, 6 SN, J W.P. No.322 of 2024 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.
10. 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."
11. 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: 7
SN, J W.P. No.322 of 2024 "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.
12. 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."8
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13. 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.
14. 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 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 9 SN, J W.P. No.322 of 2024 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 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 10 SN, J W.P. No.322 of 2024 validity; the period of travel etc., are thus under the aegis of and control of the Court.
15. 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 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.
16. Taking into consideration the fact as borne on record that, the petitioner did not furnish any written explanation/clarifications as sought for by the respondent passport authority, vide its letter dated 11.06.2022, petitioner is directed to submit petitioner's detailed explanation within a period of one (01) week from the date of receipt of the copy of this order in response to the letter, dated 11.06.2022 issued by the respondent to the petitioner and upon receipt of the same the respondent is directed to consider the said explanation and pass appropriate orders, in accordance to law, within a period of three(03) weeks thereafter, on petitioner's application dated 31.03.2022 seeking to renew petitioner's passport bearing No.J3471801 duly 11 SN, J W.P. No.322 of 2024 taking into consideration the view taken by the Supreme Court and the High Courts in all the Judgments referred to and extracted above without reference to the pendency of the proceedings in criminal case vide C.C.No.4007 of 2021 pending on the file of XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar, subject to the following conditions:
i) The petitioner herein shall submit an undertaking along with an affidavit in criminal case vide C.C.No.4007 of 2021 on the file of XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar, 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 issuance of their 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 petitioners for renewal of passport in accordance to law;
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v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in criminal case vide C.C.No.4007 of 2021 pending on the file of XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar; 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: 21st March, 2024 ksl 13 SN, J W.P. No.322 of 2024 HON'BLE MRS JUSTICE SUREPALLI NANDA WRIT PETITION No.322 of 2024 DATED:21.03.2024 ksl