Andhra Pradesh High Court - Amravati
Thippareddy Sarath vs Union Of India on 12 February, 2021
Bench: R Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.16491 of 2019
ORDER:
The petitioner is the husband of the 3rd respondent. They were
married on 18.02.2009 at Annavaram, East Godavari District in the
presence of the parents of the 3rd respondent. Subsequently, a second
marriage ceremony was performed on 06.08.2009 in Vinjamuru,
Nellore District, which is the village of the petitioner herein. The couple
stayed together initially in the United Kingdom and subsequently
moved to the United States of America. The couple have two children
from the marriage. The petitioner and the 3rd respondent developed
differences resulting in various litigations filed against each other. In
that process, the petitioner had filed a petition for legal separation in
the superior Court in San Diego, California on 22.02.2017 while the 3rd
respondent initially filed for divorce before the Family Court at
Visakhapatnam in June, 2018 and subsequently withdrew the same on
01.04.2019. She also filed a Domestic Violence Case in the superior
Court at San Diego, California on 14.02.2018, and an application for
divorce on 01.03.2018 in the Court in San Diego, California. On
19.09.2019 the superior Court at San Diego, California dissolved the
marriage between the petitioner and the 3rd respondent.
2. The 3rd respondent also filed F.I.R.No.17 of 2019 on
12.01.2019 before the Woman Police Station, Visakhapatnam against
the petitioner and his family members under Section 498-A IPC read
with Sections 3 and 4 of the Dowry Prohibition Act, 1961. After
investigation, a charge sheet was filed on 09.02.2019 and the case was
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taken up as C.C.No.816 of 2019 in the Court of the I Additional Chief
Metropolitan Magistrate, Visakhapatnam. The 3rd respondent also filed
a Domestic Violence Case against the petitioner in the Family Court-
cum-IV Additional Chief Metropolitan Magistrate, Visakhapatnam, which
was numbered as D.V.C.No.46 of 2019 on 15.02.2019.
3. The petitioner and his family members filed Crl.P.No.4512
of 2019 to quash the proceedings in C.C.No.816 of 2019 and Criminal
Petition No.4976 of 2019 to quash the proceedings in D.V.C.No.46 of
2019. By that time a Non-Bailable Warrant for the production of the
petitioner had been issued. This Court by an order dated 01.08.2019
stayed the Non-Bailable Warrant issued against the petitioner till
29.09.2019. Thereafter, the interim order was extended on 16.10.2019
till 21.10.2019.
4. In a parallel proceeding, the 3rd respondent filed
W.P.No.9736 of 2019 before this Court seeking revocation of the
passport of the petitioner. This Court by order dated 17.09.2019
directed the passport authorities to revoke the passport of the
petitioner on the ground that a Non-Bailable Warrant had been issued
against the petitioner. There are disputed questions as to the manner
of service of notice by the 3rd respondent and similarly the 3rd
respondent also raises certain disputes as to the manner of service on
her. These issues need not detain us at this stage. A further caveat
was also inserted in the said order that the procedure under the
Passport Act, 1967 must be followed scrupulously.
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5. The case of the petitioner is that the directions of this
Court were only to take action in accordance with the provisions of the
Passport Act, 1967 and the 2nd respondent, instead of following the
procedures and provisions under the Act, had issued the impugned
proceedings HYD/30/POL/PIC/169/2019, dated 09.10.2019 as well as
HY/30/POL/ PIC/169/2019 dated 17.10.2019 impounding and revoking
the passport of the petitioner.
6. This Court, by order dated 23.10.2019, kept in abeyance
the proceedings dated 09.10.2019 and 17.10.2019 with a further
direction to respondents 1 and 2 to issue a fresh passport for a period
of one year within the shortest period of time upon a proper
application being filed by the 1st petitioner.
7. At this stage it is necessary to consider the necessary
provisions of Section 10 of the passport Act, 1967, which are as
follows:
"10. Variation, impounding and revocation of passports
and travel documents -
(3) The passport authority may impound or cause to be
impounded or revoke a passport or travel document,
(e) If proceedings in respect of an offence alleged to have
been committed by the holder of the passport or travel
document are pending before a criminal court in India;
(h) if it is brought to the notice of the passport authority
that a warrant or the summons for the appearance, or the
warrant for the arrest, of the holder of the passport or
travel document has been issued by a court under any law
for the time being in force or if an order prohibiting the
departure from India of any holder of a passport or travel
document has been made by any such court and the
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passport authority is satisfied a warrant or summons has
so been issued or an order has so been made"
8. This provision does not mean that the passport of a
person is to be revoked the minute a criminal case is pending before a
criminal court. The language clearly shows that power is being vested
in the passport authority to consider impounding or revocation of the
passport in appropriate cases, for good and cogent reasons. The
Ministry of External Affairs had issued a notification in G.S.R.570(e)
dated 25.08.1993, permitting the holders of passports, against whom
proceedings have been pending before a Criminal Court in India, to
depart from India upon production of orders from the Court concerned.
This would also go to show that even the State understands the
provision as an enabling provision to be exercised and not a provision
stipulating automatic impounding or revocation.
9. In the light of the above law, the impugned proceedings
should now be considered. The impugned proceedings merely record
that the passport has been impounded, and then revoked because this
Court had directed it. The impugned proceedings do not consider the
caveat placed by this court that it should be done in accordance with
the procedure under the passport Act. A perusal of the Act and the
rules would show that there is no procedure is stipulated as to how
impounding or revocation is to be done. In such circumstances one
would have to fall back on the minimum rule that no person can be
condemned without a notice and hearing. This cardinal rule has not
been followed. Further, the Non-Bailable Warrant, which was the
reason for the order of this court, has been set aside by this Court
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vide judgment dated 12.02.2021 in Criminal Petition Nos.4512 & 4976
of 2019.
10. It must be kept in mind that the petitioner is gainfully
employed in United States of America and is undergoing a highly
contested battle for custody of his children. Denial of passport to the
1st petitioner would essentially curtail his right to employment as well
as his ability to remain in proximity to his children and to take part in
their upbringing, which is an essential part of parenting, and any
restriction of such right would also be detrimental to his interests under
Article 21 of the Constitution of India.
11. At the same time, the need for the presence of the
petitioner in the Criminal Court at Visakhapatnam where he would be
facing trial in C.C.No.816 of 2019 before the I Additional Chief
Metropolitan Magistrate Court would have to be balanced against his
rights set out above.
12. At this point of time, the passport of the petitioner had been
renewed for a period of one year on the directions of this court, in this
writ petition, on 23.10.2019. This period has elapsed and the petitioner
has filed an application for further renewal. In these circumstances the
impugned orders HYD/30/POL/PIC/169/2019, dated 09.10.2019 as well
as HY/30/POL/ PIC/169/2019 dated 17.10.2019 issued by the
respondent No. 2 is set aside and respondents 1 and 2 are directed to
renew his existing passport/issue a fresh passport to the petitioner, in
accordance with the rules for such renewal/issue of passports, upon
such application by him. However, during the pendency of the case
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before the trial court, the 1st petitioner would be required to approach
the trial court in C.C.No.816 of 2019 for necessary orders permitting
him to travel and stay in the United States of America or such other
country in the course of his employment and for the purpose of
remaining near his children.
13. The writ petition is accordingly disposed of. There shall be
no order as to costs. As a sequel, pending miscellaneous petitions, if
any, shall stand closed.
_________________________
R. RAGHUNANDAN RAO, J.
12th February, 2021
Js.
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W.P.No.16491 of 2019
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.16491 of 2019
12th February, 2021
Js.
