Saleh Bin Ali Lahmadi vs The Union Of India
2023 Latest Caselaw 4386 Tel

Telangana High Court

Saleh Bin Ali Lahmadi vs The Union Of India on 26 December, 2023

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS. JUSTICE SUREPALLI NANDA

              WRIT PETITION No.34598 OF 2023

ORDER:

Heard learned counsel for the petitioner and

Smt. N.V.R. Rajya Lakshmi, learned counsel representing

learned Deputy Solicitor General of India appearing on

behalf of respondent No.2 submits that the subject issue

is squarely covered by the order passed by this Court

dated 05.12.2023 in W.P.No.32906 of 2023.

2. The petitioner has approached the Court seeking

the following relief:

"to issue a Writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondent No.2 in not renewing Petitioner's Passport bearing No.K5530641 pursuant to the application vide File number HY2075812554923, dated 23.09.2023 on the ground of pending Criminal Case vide CC.No.3712/2023 U/s 448, 504, 506 R/w 34 of IPC on the file of VIII Addl. Chief Metropolitan Magistrate, Hyderabad as illegal, arbitrary, unconstitutional, in violation of principles, of natural justice and contrary to the provisions of the Passports Act, 1967 and consequently direct the Respondent No.2 to renew Petitioner's passport bearing No.K5530641 pursuant to the application dated:23.09.2023 without reference to the said criminal case and be pleased to pass such other order or orders as may deem fit and proper in the circumstances of the case."

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3. The case of the petitioner, in brief, is as follows:

a) The petitioner is resident of Hyderabad and his passport

No.K5530641 was valid up to 27.12.2022. On 23.09.2023, the

petitioner made application to respondent No.2 vide file No.

HY2075812554923 to renew passport as per the procedure

under Passports Act, 1967.

b) After several oral requests by the petitioner, the 2nd

respondent informed that the petitioner is involved in criminal

case vide C.C.No.3712 of 2023 under Sections 448, 504, 506

R/w 34 of IPC on the file of VIII Addl. Chief Metropolitan

Magistrate, Hyderabad, hence, petitioner's passport cannot be

renewed. Aggrieved by the same, 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 renewal 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. The Apex Court in the judgment reported in 2013

(15) SCC page 570 in Sumit Mehta Vs. State of NCT of

Delhi at para 13 observed as under:

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"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 Menaka Gandhi Vs. Union of India

and another reported in AIR 1978 SC 597, and in Satish

Chandra Verma Vs. 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.

7. Respondent No.2 cannot deny renewal of Passport to the

petitioner on the ground that Criminal Case is pending against

the petitioner. It is relevant to note that the Apex Court in

2020 Crl.L.J. (SC) 572 in "Vangala Kasturi Rangacharyulu v.

Central Bureau of Investigation" 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) 4 SN,J wp_34598_2023

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 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 renew/issue the passport of

the applicant without raising the objection relating to the

pendency of the aforesaid criminal case.

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 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 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 5 SN,J wp_34598_2023

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.

9. In view of the aforesaid discussion, this writ

petition is disposed of at the admission stage directing

the respondent No.2 herein to consider the application

No.HY2075812554923, dated 23.09.2023 submitted by

the petitioner herein seeking to renewal of his passport

on the following conditions:-

i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.3712 of 2023 pending on the file of VIII Additional Chief Metropolitan Magistrate, Hyderabad, stating that he shall not leave India during pendency of the said C.C. without permission of the Court and that he shall 6 SN,J wp_34598_2023

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 there from;

iii) The petitioner herein shall submit an application afresh along with certified copy of this order as well as the aforesaid undertaking before the Passport Officer/ Authority concerned for renewal of passport;

iv) On filing such an application, the Passport Officer/Authority shall consider the same afresh 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 passport, in accordance with law, within three (03) weeks from the date of said application;

v) Respondent No.2 shall consider Rule 12 of the Passport Rules, 1967 while considering the aforesaid application submitted by the petitioner.

vi) On issuance of the Passport, the petitioner herein shall deposit the same before the trial Court in C.C.No.3712 of 2023; and

vii) However, liberty is granted to the petitioner herein to file an application before the learned Magistrate seeking permission to travel 7 SN,J wp_34598_2023

abroad, and it is for the learned Magistrate to consider the same in accordance with law.

10. With these 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, the miscellaneous petitions, if any, pending

in the Writ Petition shall also stand closed.

______________________ SUREPALLI NANDA, J Date: 26.12.2023 plp 8 SN,J wp_34598_2023

HON'BLE MRS. JUSTICE SUREPALLI NANDA

WRIT PETITION No.34598 OF 2023

Date: 26.12.2023

plp