Telangana High Court
Sri Ashok Leburu vs The Union Of India on 5 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.5764 OF 2024
ORDER:
Heard Mr. Shyam S. Agrawal, learned counsel appearing on behalf of the petitioner and Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing on behalf of respondent No.1.
2. The petitioner approached this Court with the following prayer:
" ....to pass an order issue a Writ or any other direction in the nature of writ more particularly writ of mandamus declaring the action of the respondent No.3 in refusing to release the passport of the petitioner bearing No L6011351 dated 19.11.2013 under their letter dated 20.10.2023 and asking the petitioner to produce acquittal order or travel permission as illegal arbitrary violative of Article 21 of the Constitution of India and the principles of natural justice etc and consequently direct the respondent No
3 to release the passport of the petitioner taken on 15.02.2021 to him by duly renewing it in usual manner in the interest of justice and to pass such other and further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case." 2 PERUSED THE RECORD
3. The case of the petitioner in brief is that, show cause notice dated 05.09.2019 was issued to the petitioner by the respondent No.3 stating that a criminal case is pending on the file I Additional Chief Metropolitan Magistrate, Visakhapatnam and explanation is sought for from the petitioner. On 18.09.2019 the petitioner got issued a reply notice but in vain. He was issued another notice dated 06.01.2020 from the respondent No.3 for which also the petitioner got issued reply notice on 24.01.2020. The passport of the petitioner was impounded by the passport authority at Hyderabad vide proceedings dated 06.03.2020 of the 3rd respondent. Aggrieved by the same, the petitioner filed the present writ petition.
4. The learned Deputy Solicitor General of India brings to the notice of the Court that the passport of the petitioner dated 19.11.2013 expired by 18.11.2023 and the petitioner has to apply for fresh passport under reissue category as per the rules and procedure and seek renewal to release the passport of the petitioner bearing No.L6011351. The petitioner received letter dated 20.10.2023 from the 3rd respondent herein in response to petitioner's request made vide petitioner's letter dated 3 12.10.2023 to release petitioner's passport from safe custody stating that petitioner had to furnish certified copies of acquittal order or travel permission.
5. 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 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 the ground of the pendency of 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 case (cited supra) had an occasion to examine the provisions of the Passports Act, 4 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 without raising the objection relating to the pendency of the aforesaid criminal appeal in S.C. 5
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 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:
"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 6 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.
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 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.
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12. 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 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 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 8 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."
13. Taking note of the fact that the petitioner's passport expired on 18.11.2023 itself and the petitioner has to submit a fresh application under the reissue category for obtaining the renewal of the passport, this Court opines that the said fresh application and petitioner's request for release of the passport from the safe custody of the 3rd respondent which has been taken on 15.02.2021 by the 3rd respondent herein, need to be considered in accordance to law by the 3rd respondent. 9
14. Taking into consideration the aforesaid facts and circumstances of the case and also duly considering the law laid down by the Apex Court and law laid down by other High Courts in the Judgments referred to and extracted above and duly considering the submissions made by the learned counsel appearing on behalf of the 3rd respondent, the petitioner is directed to file fresh application seeking renewal of passport bearing No. L6011351 under the reissue category within a period of two weeks from the date of receipt of copy of the order and upon the petitioner filing such application and on receipt of the same, the 3rd respondent shall consider the same in accordance with law duly taking into consideration the law laid down by the Apex Court and other High Court in the various judgments referred to and extracted above, and pass appropriate orders on petitioner's application seeking renewal of the passport and also for release of passport from safe custody made vide letter dated 12.10.2023 within a period of two weeks thereafter without reference to the pendency of the proceedings in C.C. No. 244 of 2013 on the file of I 10 Additional Chief Metropolitan Magistrate, Visakhapatnam subject to the following conditions:.
i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.244 of 2013, pending on the file of I Addl. Chief Metropolitan Magistrate, Visakhapatnam 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 No.2 Passport Officer for renewal of his passport;
iv) The Respondent No.3-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;
v) On renewal of the Passport, the petitioner 11 herein shall deposit the original renewed Passport before the trial Court in C.C.No.244 of 2013; and
vi) However, liberty is granted to the petitioner herein tofile 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.
With the above said observations, the writ petition is disposed of. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in thewrit petition shall also stand closed.
__________________________ MRS JUSTICE SUREPALLI NANDA Date: 05th March, 2024 Note C.C. Tomorrow (B/o) Skj 12 THE HON'BLE MRS JUSTICE SUREPALLI NANDA 13 WRIT PETITION No.5764 OF 2024 Dated : 05.03.2024 Skj