Telangana High Court
Mohammed Imran Ali vs The Union Of India on 6 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.3738 OF 2024
ORDER:
Heard Mr.Mohammed Imran Ali, learned counsel for the petitioner and learned Dy. Solicitor General of India, appearing on behalf of respondent Nos.1 and 2.
2. The petitioner approached this Court with the following prayer:
"... to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of MANDAMUS questioning the action of Respondent No.2 issued a impugned letter IMP/316925347/24 impounded passport bearing no.S9693748 mail dated 07/02/2024 on the ground of criminal case pending FIR No.75/2014 in CC 347/17 on the file of principle assistant section judge at Hanamakonda is illegal, arbitrary and violative of Article 21 of Constitution of India and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case".
PERUSED THE RECORD
3. It is the specific case of the petitioner that in response to the notice dated 07.11.2023 issued to the petitioner by the respondent No.2, petitioner had submitted detailed explanation 2 SN, J W.P. No.3738 of 2024 dated 29.04.2023 to the 2nd respondent. Without considering the said explanation dated 29.04.2023 petitioner received another notice dated 07.11.2023 and the petitioner again vide mail dated 30.01.2024 informed the 2nd respondent that petitioner had been replying to all the e-mail as received by the petitioner, however, without reference to the explanation dated 29.04.2023, 01.01.2024 and 30.01.2024 furnished by the petitioner order impugned dated 07.02.2024 had been issued to the petitioner by the 2nd respondent stating that in the absence of response from the petitioner, petitioner's passport had been impounded aggrieved by the same petitioner filed the present writ petition.
4. This court opines that pendency of criminal case against the petitioner cannot be a ground to deny issuance of Passport to the petitioner and the right to personal liberty would include not only the right to travel abroad but also the right to possess a Passport.
5. 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 criminal cases registered against the petitioner since the show cause notice dated 07.04.2023 issued to the petitioner by the 2nd respondent refers to pendency of a case with FIR vide No.75/2014 registered against petitioner at 3 SN, J W.P. No.3738 of 2024 Warangal Urban PS, which is pending before the I Additional Judicial I Class Magistrate, at Warangal and the show cause notice dated 07.11.2023 issued to the petitioner by the 2nd respondent refers to criminal proceedings before Sessions Court, Hanmakonda vide S.C.No.347 of 2017 and also about a non-bailable warrant issued against the petitioner and action of the respondents seeking to impound passport on the ground of pendency of criminal cases inspite of petitioner furnishing the clarifications as sought for, in reply to the show cause notice issued to the petitioner 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 1.
6. 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 1 . 2020 Crl.L.J. (SC) 572 4 SN, J W.P. No.3738 of 2024 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.
7. 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."
8. The Apex Court in Menaka Gandhi vs Union of India reported in 1978 (1) SCC 248, held that no person can be 5 SN, J W.P. No.3738 of 2024 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.
9. 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 6 SN, J W.P. No.3738 of 2024 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."
10. 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.
11. 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 I was however stayed. In those circumstances also it was held that the passport authority cannot refuse the "renewal" of the passport.7
SN, J W.P. No.3738 of 2024 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 (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 8 SN, J W.P. No.3738 of 2024 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.
12. Taking into consideration the aforesaid facts and circumstances of the case and duly taking into consideration the law laid down in the above said judgments (referred to and extracted above), the writ petition is disposed of directing the petitioner to submit fresh explanation to notices dated 07.04.2023 and 07.11.2023 issued by respondent No.2 to the petitioner, within a period of two (2) weeks from the date of receipt of a copy of this order and upon respondent No.2 receiving the said explanation from the petitioner in response to the two notices dated 07.04.2023 and 07.11.2023 issued to the petitioner by the 2nd respondent, the 2nd respondent shall consider the same and pass appropriate orders in accordance to law, duly taking into consideration the law laid down by the Apex Court and other High Courts in the judgments (referred to and extracted above) and re-consider the impugned 9 SN, J W.P. No.3738 of 2024 proceedings/decision dated 07.02.2024 of the 2nd respondent impounding petitioner's passport bearing No.S9693748 within a period of two weeks thereafter and duly communicate the decision to the petitioner. 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: 6th March, 2024 vsl