Telangana High Court

Priyanka Sarasani vs Union Of India on 15 December, 2023

Author: Surepalli Nanda

Bench: Surepalli Nanda

     HON'BLE MRS JUSTICE SUREPALLI NANDA

         WRIT PETITION No.30383 OF 2023


ORDER:

Heard Mr.Ponnam Mahesh Babu, learned

counsel appearing on behalf of the petitioner and

Mr.D.Radha Krishna, learned counsel appearing on

behalf of respondents.

2. The petitioner approached the Court seeking

prayer as under:

"to issue order, writ or direction more particularly one in nature of writ of mandamus declaring the action of respondent No.2 in not renewing/re-issuing the passport after submission of application as per the provisions of the Passport Act bearing File No.HY4075107595323 dated 21.04.2023 as illegal, arbitrary and violative of Article 21 of the Constitution of India."

3. Counter affidavit has been filed by respondent

Nos.1 and 2, in particular, paragraph Nos.6, 7 and 9,

reads as under:

" It is submitted that in reply to para 4, it is true that the petitioner had filed the renewal application to rectify her name as PRIYANKA SARASANI from PRIYANKA SARASAN. This respondent office on verifying the records is found that the petitioner in continuation to her passport bearing No,L4729818, 2 WP_30383_2023 SN,J

dated.25.09.2013 with a validity upto 24.09.2023 has applied for reissue of passport vide File No. No.HY4075107595323, dated 24.02.2023 with correction in her surname spelling. (Annx-II) This office had received a written complaint dated. 24.09.2019 by post against the petitioner from the Advocate Mr. Anas Shaik, High Court Advocate, at Kolkata stating that there is a case pending against the petitioner and on her husband viz., Dr.Sarasani Ashish Reddy (Both managing partners of Ms Tirumala Hospitals) C.No. 106/2019 at Chief Metropolitan Magistrate at Kolkata u/s 138 of Negotiable Instrument Act vide case No. CS/31517/18 at XV Metropolitan Magistrate who was pleased to issue warrant of arrest against the partners of the Ms Tirumala Hospitals. In the notice it is further requested to impound the pass port of the petitioner along with her husband. After receipt of the said notice, this office requested the complainant vide Lr.No.Hyd/30/POL/PCC/299/2019, dated.22.10.2019 requesting him to forward the certified copies of charge sheet, warrant or court order against the petitioner and her husband to enable to take further action. (Annx-III).

It is respectfully submitted that this office can re- consider the re-issue of application of the petitioner if he/she submits acquittal order as stated above or obtain permission from the concerned Court where the criminal case is still pending as per Notification of Ministry of External Affairs Gazette GSR 570 (E) dated.25.08.1993. In view of the above there are no merits in the Writ Petitioner and is liable to be dismissed."

4. Learned counsel appearing on behalf of the

petitioner has filed reply affidavit, in particular,

paragraph No.5, reads as under:

3 WP_30383_2023 SN,J

"I submit that after getting the information regarding the case I approached an Advocate Utpal Das fro Calcutta and he intimated that there is no case pending against me and, I called the advocate for further details of the said case but till date no information was given regarding any pending case."

5. This Court opines that Respondent No.2 cannot

deny issuance of Passport on the ground that aforesaid

Criminal Cases are pending against him. It is also

relevant to note that the Apex Court in "VANGALA

KASTURI RANGACHARYULU v. CENTRAL BUREAU OF

INVESTIGATION 1" had an occasion to examine the

provisions of the Passports Act, 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, 468, 471 and 477A read

with 120B of the IPC and also Section - 13 (2) read

. 2020 Crl.L.J. (SC) 572 4 WP_30383_2023 SN,J

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 issuance 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 case.

6. The Apex Court in the 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."

7. The Apex Court in "MENAKA GANDHI VS. UNION OF

INDIA AND ANOTHER" reported in AIR 1978 SC 597, and in 5 WP_30383_2023 SN,J

"SATISH CHANDRA VERMA v. UNION OF INDIA (UOI) AND

OTHERS" reported in 2019 (2) SCC Online SC 2048 very

clearly observed that the right to travel abroad is a part of a

personal liberty and the right to possess a passport etc.,

can only be curtailed in accordance with law only and

not on the subjective satisfaction of anyone. The

procedure must also be just, fair and reasonable.

8. In the judgment dated 08.04.2022 of the Andhra

Pradesh High Court reported in 2023 (4) ALT 406 (AP) in

"GANNI BHASKARA RAO v. 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 the 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 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 6 WP_30383_2023 SN,J

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 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."

9. Taking into consideration the aforesaid facts and

circumstances of the case, the learned counsel 7 WP_30383_2023 SN,J

appearing on behalf of the passport authority submits

that in view of the specific averments made by the

petitioner in paragraph No.5 of the reply affidavit, the

passport authority may be directed to consider the

application of the petitioner. Accordingly, this writ

petition is disposed of directing the respondent No.2 to

consider the request of the petitioner to reissue the

passport bearing No.HY4075107595323 with correction

in her Surname spelling within a period of two (02)

weeks from the date of receipt of a copy of this order