Nazimuddin Farooqi vs The Union Of India
2023 Latest Caselaw 3386 Tel

         HON'BLE MRS JUSTICE SUREPALLI NANDA

            WRIT PETITION No.29449 OF 2023

ORDER:

Heard Mr. Katika Ravinder Reddy, learned counsel

for the petitioner, Mr. Gadi Praveen Kumar, learned

Deputy Solicitor General of India appearing for

respondent Nos.1 and 4 and learned Government Pleader

for Home appearing for respondent Nos.2 and 3.

2. The petitioner has approached the Court seeking the

following relief:

"to issue a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the inaction of Respondents more particularly Respondent No.4 in renewing the petitioner's Passport vide Passport bearing No.L8466022, which is valid from 15/04/2014 to 14/04/2024, under Tatkal Scheme despite of making specific representation dated 15.10.2023, on the ground of pendency of Criminal case against the petitioner vide C.C. No.8011 of 2023 on the file of Hon'ble III ACMM Court, Nampally, Hyderabad, illegal, arbitrary and in violation of Article 14 and 21 of Constitution of India beside in violation of Passport Act and also in violation of principles of natural justice and consequently direct the respondents more particularly Respondent No.4 to renew the petitioner passport vide Passport bearing No.L8466022 which is valid

from 15/04/2014 to 14/04/2024 under Tatkal scheme by considering the his representation dated 15.10.2023."

PERUSED THE RECORD.

3. It is the specific case of the petitioner that in spite of

petitioners detailed representation 15.10.2023 addressed to the

Regional Passport Officer, Kummarguda, Secunderabad, seeking

renewal of passport bearing No.L8466022, no action has been

initiated by the Regional Passport Officer, Kummarguda,

Secunderabad, on the ground that a criminal case is pending

against the petitioner. Therefore, the present Writ Petition.

4. Petitioner herein is an accused in C.C.No.8011 of 2011 for

the offences punishable under Sections 406, 420, 506 IPC of

Banjara Hills P.S., and it is pending for trial. Petitioner is not

even convicted.

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:

"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. 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 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.

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.

8. In Vangala Kasturi Rangacharyulu Vs. Central Bureau

of Investigation, the Apex Court 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 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 renew

the passport of the applicant without raising the objection

relating to the pendency of the aforesaid criminal appeal in S.C.

DISCUSSION AND CONCLUSION:

9. This Court opines 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 proved 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.

10. Taking into consideration the facts and

circumstances of the case and the law laid down in the

above said Judgments (referred to and extracted above),

the writ petition is disposed of directing the 4th

Respondent-Passport Officer to consider the

representation of the petitioner dated 15.10.2023 for

renewing the Passport bearing No.L8466022 submitted by

the petitioner, within a period of one week from the date

of receipt of a copy of this order duly taking into

consideration the observations of the Apex Court in

various judgments (referred to and extracted above),

without relating it to the pendency of the proceedings in

C.C.No.8011 of 2023 on the file of III ACMM Court,

Nampally, Hyderabad. However, in the circumstances of

the case, there shall be no order as to costs.

As a sequel, miscellaneous petitions, if any, pending

shall stand closed.

__________________ SUREPALLI NANDA, J Date: 30-10-2023

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