Telangana High Court
Pothineni Sudarsana Rao vs The Union Of India on 26 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.7765 OF 2024
ORDER:
Heard Mr. G.Sai Prasen, learned counsel for the petitioner and Mr.K.Arvind Kumar, learned Standing Counsel for Central Government, appearing on behalf of respondent Nos.1 and 2.
2. The case of the petitioner in brief is that, the petitioner herein had applied for issuance of passport vide online application bearing No.HYE076057332323, dated 13.12.2023 with respondent No.2 along with all the requisite documents and fees prescribed.
3. It is further the case of the petitioner that, the respondent No.2 issued a letter vide File No. HYE076057332323, dated 07.01.2024 seeking clarification with reference to petitioner's involvement in three cases vide 1) Cr.No.275 of 2019 u/s 143, 188, 34, 341 IPC of Khammam 1 town PS and case is PT vide C.C.No.219 of 2020, 2) Cr.No.84 of 2020 u/s 143, 269 IPC, 51(B) of DMA of Mulakalapalli PS and case is PT vide C.C. No.746 of 2021 and 3) Cr.No.76/2017 u/s 143, 188, 341 r/w 149 IPC of Vijayapuri PS and case is PT vide C.C.No.37 of 2019. 2
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4. It is further the specific case of the petitioner that, said proceedings, dated 07.01.2024 issued by the 2nd respondent further clearly stipulated that the petitioner should submit acquittal order from the case or obtain permission to travel abroad from the same court where the criminal case is still pending. Aggrieved by the said proceedings issued by the 2nd respondent, the petitioner herein approached the Court by way of filing the present Writ Petition.
5. Learned counsel appearing on behalf of the 2nd respondent submits that the writ petition could be disposed of directing the 2nd respondent to consider the petitioner's application dated 13.12.2023 seeking issuance of passport facilities to the petitioner, in accordance to law, within a reasonable period.
6. The learned counsel for the petitioner further contends that, respondents cannot refuse the issuance of passport facilities to the petitioner on the ground of 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.
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SN, J W.P. No.7765 of 2024 PERUSED THE RECORD.
7. This Court opines that pendency of criminal case/cases 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.
8. It is relevant to note that the Respondents cannot refuse the issuance of passport of 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 reported in 2020 Crl.L.J.(SC) 572 in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation.
9. 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 4 SN, J W.P. No.7765 of 2024 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 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."5
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11. 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 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.6
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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 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."
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:
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SN, J W.P. No.7765 of 2024 "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.
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 8 SN, J W.P. No.7765 of 2024 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.
15. The learned counsel appearing on behalf of the petitioner submits that mere pendency of criminal case/cases is not a ground to decline issuance of passport, and further that 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 application of the petitioner for issuance of passport. Thus, on the ground of pendency of the above criminal cases, passport cannot be denied to the petitioner.
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16. A bare perusal of the order impugned, dated 07.01.2024 indicates that, the decision of the competent authority to refuse passport services to the petitioner in response to the petitioner's passport application, dated 13.12.2023 is only on the ground of pendency of three criminal cases registered against the petitioner and since the petitioner is ready to co-operate with the trial Court in concluding trial and duly taking into consideration the law laid down by the Apex Courts in all the judgments referred to and extracted above, this Court opines that the petitioner is entitled for the relief prayed for in the present writ petition.
17. Taking into consideration the above facts and circumstances of the case and the law laid down by the Apex Court and other Courts in all the Judgments referred and extracted above,
1. Vangala Kastui Rangacharyulu v Central Bureau of Investigation reported in 2020 Crl.L.J.(SC) 572.
2. Sumit Mehta v State of NCT of Delhi reported in 2013 (15) SCC 570.
3. Maneka Gandhi v Union of India repoted in 1978 (1) SCC 248.
4. Satish Chandra Verma v Union of India and others reported in2019 SCC online SC 2048.
5.Noor Paul v Union of India reported in 2022 SCC online P&H 1176 10 SN, J W.P. No.7765 of 2024
6. Ganni Bhaskara Rao v Union of India and another reported in 2023(4) ALT 406 (AP).
the order impugned dated 07.01.2024 issued by the 2nd respondent is set aside and the Writ petition filed by the petitioner herein is disposed of directing the respondent No.2 to re-consider the application submitted by the petitioner, dated 13.12.2023 seeking for issuance of passport facilities within a period of three (03) weeks from the date of receipt of the copy of this order duly taking into consideration the law laid down 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.219 of 2020, C.C.No.746 of 2021 and C.C.No.37 of 2019 subject to the following conditions:
i) The petitioner herein shall submit an undertaking along with an affidavit in all the three C.C. Nos.219 of 2020, C.C.No.746 of 2021 and C.C.No.37 of 2019, pending on the Additional Judicial First Class Magistrate, Khammam District, stating that the petitioner will not leave India during pendency of the said C.Cs. without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said C.Cs.;11
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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 application of the petitioner dated 13.12.2023 in the light of the observations made by this Court herein as well as the contents of the undertaking given by the petitioner for issuance of passport in accordance to law;
v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in C.C. No.219 of 2020, C.C.No.746 of 2021 and C.C.No.37 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 to 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: 26th March, 2024 ksl.