Telangana High Court
Vosuru Sai Shankar vs Government Of India on 4 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.3883 OF 2024
ORDER:
Heard Sri R.Sujan Kumar, learned counsel for the petitioner and Sri G.Bhaskar Reddy, learned Standing Counsel for Central Government appearing for respondent No.2.
2. The petitioner approached this Court seeking the relief as under:
"to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus, declaring the inaction of the 1st respondent in not renewing the petitioner's passport bearing No.J3431689 in spite of submitting the explanation dated 29.01.202 to the letter dated 20.04.2023 bearing Lr.Ref.No.SCN/314657361/23, as being illegal, arbitrary, unjust and unconstitutional, and to grant such other relief or reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case.."
3. The case of the petitioner in brief:
It is the specific case of the petitioner that the petitioner applied for renewal of passport with the file No. MA1075013697923, dated 27.01.2023, and the petitioner in response to his application dated 27.01.2023 received a letter 2 WP_3883_2024 SN,J dated 20.04.2023 issued by the Regional Passport Office, Chennai, informing petitioner's request for issuance of passport had not been recommended due to pendency of criminal case against the petitioner and the 2nd respondent herein vide letter dated 20.04.2023 sought certain clarification's from the petitioner regarding issuance of passport facilities to the petitioner, pertaining to petitioner's involvement in crime No.107 of 2019 under Section 498-A,323,504,506,420,406 read with 109 IPC, Section 3 & 4 of Dowry Prohibition Act of WPS Gachibowli, Hyderabad, Telangana State and petitioner's involvement in Maintenance Case vide FCO No.955/2020 on the file of Additional Family Court, Ranga Reddy District. In response to notice, dated 20.04.2023 issued to the petitioner by the 1st respondent herein, the petitioner had submitted an explanation vide letter, dated 29.01.2024 to the 1st respondent herein duly enclosing the certified copy of Divorce Order from the Family Court and requested respondent No.1 herein to approve petitioner's passport for renewal. Though, respondent No.1 received the explanation by the petitioner vide letter dated 29.01.2024 furnished in response to notice dated 20.04.2023 issued by the 1st respondent yet no action had been initiated, in passing orders on petitioner's application dated 27.01.2023 3 WP_3883_2024 SN,J seeking renewal of passport bearing No.J3431689 and aggrieved by the same, the petitioner approached the Court by filing the present writ petition.
4. Learned Standing Counsel appearing on behalf of respondents brings on record written instructions of paragraph Nos. 2, 3, 4, 11, 12 and 13 which read as under:-
2. On verifying this office records, it is found that in continuation to passport bearing No.J34331689, dated 01-
03-2011, the petitioner applied for re-issue of his passport under RPO Chennai vide File Number MA1075013697923, dated 27.01.2023. The file is kept on hold as the prefile is with adverse PVR and policy data vide 2000303_POL_HYD.
3. The file was initiated with Pre-PV and received adverse PVR stating that the applicant is involved in Cr.107/2019 under Section 498-A,323,504,506,420,406 read with 109 IPC, Section 3 & 4 Dowry Prohibition Act of WPS Gachibowli, Hyderabad, Telangana State and the case is pending trial in the Court and he is also facing a Maintenance Case vide FCO No.955/2020 at Addl.Family Court, Ranga Reddy District.
4. The RPO Office at Chennai has sent a show cause notice, dated 20.04.2023 to furnish his explanation for suppression of information regarding his pending Court case.
11. Also, it is submitted that admittedly there is pending criminal case, whenever such pendency is brought to the notice of the passport issuing Authority, provisions of Section 6(2)(f) of the Passports Act, 1967 are attracted which are reproduced herein under for ready reference of this Hon'ble Court:
"Section 6(2) of the Act_Subject to the other provisions of this Act, the Passport authority shall refuse to issue a 4 WP_3883_2024 SN,J Passport or a travel document for visiting any foreign country under clause(c) of Sub-Section (2) of Section 5 on any one or more the following grounds, and on no other ground, namely.
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal Court of India."
12. That, the same has further been clarified in the Office Memorandum bearing No.VI/401/1/5/2019, dated 10.10.2019 issued by the Joint Secretary(PSP) & Chief Passport Officer, PSP Division, Ministry of External Affairs, Government of India at its Para-5(ix) that-
"If it is brought to the notice of the authority that an applicant has criminal proceedings arrayed against applicant may be advised to get NOC from all the concerned court(s)."
13. This Office can reconsider his application, if the Petitioner submits acquittal order from the above case or obtain permission to travel abroad from the same Hon'ble Court where the criminal case is still pending. In this regard, the Ministry of External Affairs Gazette Notification vide GSR 570(E), dated 25.08.1993
5. This Court opines that pendency of criminal case cannot be a ground to deny issuance of Passport facilities to the petitioner and renewal application, dated 27.01.2023 has to be considered 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 a Passport.
6. It is also relevant to note that the Respondents cannot refuse the renewal of passport of the petitioner on 5 WP_3883_2024 SN,J 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 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.
7. 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 6 WP_3883_2024 SN,J (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.
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 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. 7
WP_3883_2024 SN,J 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.8
WP_3883_2024 SN,J
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 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 9 WP_3883_2024 SN,J 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 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 10 WP_3883_2024 SN,J 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. 11
WP_3883_2024 SN,J
13. Taking into consideration, the facts and circumstances of the case and duly considering the fact as borne on record that petitioner submitted explanation, dated 29.01.2024, in response to notice dated 20.04.2023 issued to the petitioner by the 1st respondent herein, the writ petition is disposed of, directing the respondent Nos.1 and 2 to consider the explanation dated 29.01.2024 furnished by the petitioner in response to the notice dated 20.04.2023 issued to the petitioner by the 1st respondent herein duly taking into consideration the view taken by the Hon'ble High Courts and Hon'ble Supreme Court in all the Judgments (referred to and extracted above), and pass appropriate orders in accordance to law on petitioner's application dated 27.01.2023 seeking renewal of passport bearing No.J3431689 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.104 of 2020 on the file of the Hon'ble V Additional Junior Civil Judge-cum-XII Additional Metropolitan magistrate, Kukatpally. However, in the circumstances of the case, there shall be no order as to costs.
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WP_3883_2024 SN,J As a sequel, miscellaneous petitions, if any, pending in the writ petition shall also stand closed.
______________________________ MRS JUSTICE SUREPALLI NANDA Date:04.03.2024 Ktm/Lpd