Telangana High Court

Ganesh Reddy Sama vs The Union Of India on 27 December, 2023

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA

             WRIT PETITION No.34772 OF 2023


ORDER:

Heard Mr.B.S.S.Prasad, learned counsel for the

petitioner and Ms.Rajya Lakshmi, learned counsel

representing Mr.Gadi Praveen Kumar, learned Deputy

Solicitor General of India, for the respondents.

2. The petitioner approached this Court seeking the

relief as under:

"to issue a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of 2nd respondent in not renewing the petitioner's passport bearing No.K4740168 pursuant to the application vide File No.HY1075311241323 dated 28.04.2023 on the ground of pending criminal case vide C.C.No.6439 of 2022 under Section 420 of IPC on the file of VI Additional Chief Metropolitan Magistrate at 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 2nd respondent to renew the petitioner's passport bearing No.K4740168 pursuant to the application dated 28.04.2023 without reference to

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the said criminal case in the interest of justice and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

3. The case of the petitioner in brief:

It is the specific case of the petitioner that the petitioner

had filed application dated 28.04.2023 to respondent No.2

vide File No.HY1075311241323 and sought for renewal of

passport to the petitioner. The petitioner received notice

dated 01.08.2023 issued by the Regional Passport Office,

Secunderabad seeking certain clarifications from the

petitioner and accordingly petitioner filed his reply dated

21.08.2023 clarified about the criminal cases pending against

the petitioner as sought for vide letter of the Regional

Passport Office, dated 01.08.2023 and in spite of the said

clarification submitted for renewal of passport bearing

No.K4740168, the passport has not been issued to the

petitioner as on date. Aggrieved by the same, the petitioner

approached the Court by filing the present writ petition.

PERUSED THE RECORD.

4. A perusal of the record would reveal that, the petitioner

herein is an accused in C.C.No.6439 of 2018 for the offence

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punishable under Section 420 of IPC, on the file of the VI

Additional Chief Metropolitan Magistrate, at Hyderabad.

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

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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."

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

INDIA AND ANOTHER" reported in AIR 1978 SC 597, and in

"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

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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 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

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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. Smt. Rajya Lakshmi, learned counsel representing

learned Deputy Solicitor General of India submits that the

Writ Petition can be disposed of directing the Regional

Passport Officer to consider the explanation submitted by the

petitioner dated 21.08.2023 in response to the notice dated

01.08.2023 furnished by the petitioner within a reasonable

period.

10. Taking into consideration, the aforesaid facts and

circumstances and duly taking into consideration the

law laid down in the various Judgments (referred to

and extracted above), the Writ Petition is disposed of

directing the Regional Passport Office, Secunderabad to