Telangana High Court
Koushik Raghavan vs The Union Of India on 5 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.5869 OF 2024
ORDER:
Heard M/s. Progressive Law Firm, learned counsel for the petitioner, Mr. B. Jithender, learned counsel representing Mr. Gadi Praveen Kumar, Deputy Solicitor General of India, appearing on behalf of respondent No.1 and learned Assistant Government Pleader for Home, appearing on behalf of respondent Nos. 2 to 4.
2. The petitioner approached this Court with the following prayer:
" ...to issue a writ order or direction more so a writ in the nature of Mandamus by declaring the inaction of the Respondent No.3 in not renewing the passport of the petitioner and refusal to renew the petitioner's passport as arbitrary illegal unlawful and against Article 21 of the Constitution as laid down in Maneka Gandhi Vs UOI and to pass such other order or orders as the Hon'ble Court may deem fit and proper in the circumstances of the case."
3. It is the specific case of the petitioner that the petitioner had applied for renewal of passport vide File No. HY2076099080523 dated 27.12.2023 but however the petitioner's case had not been considered instead the petitioner received a communication SN, J 2 W.P. No.5869 of 2024 letter dated 04.01.2024 wherein a reference is made with regard to C.C. No. 5395 of 2021 registered against the petitioner for the offence under Section 337 of IPC at X AMM Court, Kukatpally, Hyderabad and the petitioner had been informed vide the said letter dated 04.01.2024 that the competent Authority decided to refuse passport services to the petitioner. The learned counsel appearing on behalf of the petitioner submits that pendency of the criminal case cannot be a ground for denial of renewal of passport. Petitioner specifically contends that petitioner needs to travel abroad for work purpose but however, the 3rd respondent vide proceedings dated 04.01.2024 is insisting the petitioner to furnish acquittal order or permission to travel abroad from the Court. Hence the petitioner filed the present writ petition. PERUSED THE RECORD.
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 would include not only the right to travel abroad but also the right to possess a Passport.
5. The Apex Court in judgment reported in 2013 (15) SCC page 570 in Sumit Mehta v State of NCT of Delhi at SN, J 3 W.P. No.5869 of 2024 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."
6. 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.
SN, J 4 W.P. No.5869 of 2024
7. 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."
8. 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.
9. 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 SN, J 5 W.P. No.5869 of 2024 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 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 SN, J 6 W.P. No.5869 of 2024
(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."
10. It is 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, 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 SN, J 7 W.P. No.5869 of 2024 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.
11. The Division Bench of Bombay High Court in the Judgment dated 13.03.2014, reported in 2014 SCC OnLine Bom 356 in "Narendra K. Ambwani v. Union of India", observed at Paragraph Nos.6 and 7, as under:
"6. This court held that the Rules have been framed under the Passport Act and under Rule 12, a passport other than for a child aged more than 15 years, shall be in force for a period of 10 years or 20 years as the case may be from the date of its issue.
7. In the present case, the Respondents contended that the order of the learned Magistrate did not specify the period for which the passport is issued and in the light of SN, J 8 W.P. No.5869 of 2024 Notification dated 23rd August, 1993 (Annexure "6" to the petition), the passport of the citizen against whom the proceedings are pending in the criminal court in India, shall be issued for a period specified by the court and if no period is specified, the passport shall be renewed for a period of one year. This court held that interpretation of the order of the learned Magistrate dated 20th September, 2006 is contrary to the express language of the order. When the order speaks about renewal of the passport in terms of the Passport Rules, reference must be made to Rule 12 alone and the Passport Officer was bound to issue the passport either for a period of 10 years or for a period of 20 years as the case may be in his discretion. The Passport Officer could not have at any rate renewed the passport for a period less than 10 years. Accordingly, the Rule was made absolute and the Regional Passport Officer was directed to issue the passport, renewed for a period of 10 years or 20 years."
12. Another Judgment dated 30.11.2016 of the Division Bench of Bombay High Court reported in 2016 SCC OnLine Bom 14539 : (2020) 3 AIR Bom R 459 in Mr. Samip Nitin Ranjani v. Union of India and others, observed at relevant paragraphs 3 and 4, as under:
"3. The grievance of the Petitioner is that the Passport Authorities, instead of renewing the passport for a period of 10 years as provided under the provisions of the SN, J 9 W.P. No.5869 of 2024 Passports Act, 1967, has renewed the passport only for a period of one year. Challenging the same, writ was filed.
4. In our view, the ratio of the judgment of this Court in the case of Narendra Ambwani (supra) would squarely apply to the facts of the present case. The Division Bench of this Court has issued guidelines which are to be followed by the Respondents on the receipt of application for renewal of passport. It is observed in paragraphs 10 and 11 as under:
"10. In the circumstances, we propose to issue guidelines to be followed by the Respondents on receipt of the applications for renewal of the passports, in all cases, where the Magistrate's court has directed that the passport may be renewed as per the "Rules".
11. Accordingly, we issue the following directions:-
(a) In all cases where the Magistrate's court directs renewal of the passports under the Rules, the Passport Rules, 1980 shall apply and passports other than for a child aged more than 15 years shall be renewed for a period of ten years or twenty years as the case may be from the date of its issue. All qualifying applicants are entitled to have passport renewed for at least ten years. The Regional Passport Office shall renew the passports of such qualifying applicants at least for ten years.
SN, J 10 W.P. No.5869 of 2024
(b) In case where the passports are valid and the applicants hold valid visas on existing passport, the Regional Passport Officer shall issue the additional booklet to the same passport provided the applicant had obtained permission to travel abroad.
(c) If the learned Magistrate passes an order making the reference to the said Notification No. G.S.R. 570(E) dated 26th August, 1993, the passport shall be renewed only for such period that the Magistrate may specify in the order or as otherwise specified in the said Notification where the passport of the applicant is valid for less than one year, the additional booklet may be issued subject to the orders to be obtained in this behalf only of the Magistrate concerned."
13. This Court takes note of the fact that the petitioner herein did not seek a prayer to set aside the order dated 04.01.2024 of the 3rd respondent informing the petitioner that the competent Authority decided to refuse passport services to the petitioner and taking into consideration the facts and circumstances of the case, the writ petition is disposed of directing the 3rd respondent to reconsider the order dated 04.01.2024 of the 3rd respondent and pass SN, J 11 W.P. No.5869 of 2024 appropriate orders on petitioner's application vide File No. HY2076099080523 dated 27.12.2023 seeking renewal of passport for a period of 10 years in accordance to law duly taking into consideration the law laid down by the Apex Court and other High Courts in the various judgments referred to and extracted above and pass appropriate orders within three (03) weeks from the date of receipt of the copy of the order subject to the following conditions:
i) The petitioner herein shall submit an undertaking along with an affidavit in vide CC No. 5395 of 2021 on the file of X AMM Court, Kukatpally, Hyderabad 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.Cs.;
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 of the petitioner dated 27.12.2023 seeking renewal of passport for a period of ten years SN, J 12 W.P. No.5869 of 2024 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 herein shall deposit the original renewed Passport before the trial Court in CC No. 5395 of 2021 on the file of X AMM Court, Kukatpally, Hyderabad 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: 5th, March, 2024 Note C.C. in Three days (B/o) Skj