Telangana High Court

Poddutury Gopal Reddy vs The Union Of India on 1 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

            HON'BLE MRS JUSTICE SUREPALLI NANDA


               WRIT PETITION No.1756 OF 2024
ORDER:

Heard Mr. Alluri Divakar Reddy, learned counsel appearing

on behalf of the petitioner and Mrs.N.V.R.Rajya Lakshmi, learned

counsel representing Mr. Gadi Praveen Kumar, learned Deputy

Solicitor General of India, appearing on behalf of respondent

Nos.1 to 3.

2. The case of the petitioner is that he made an application for

renewal of passport vide No.K9201209 which is valid up to

16.04.2023 vide File No.HY4075214639923 dated 28.03.2023

and on the ground of pending Criminal Case vide

Cr.No.193/2022 for the offences punishable under Sections.353,

283 r/w 34 IPC on the file of Police Station, Khanapur, which

arise out of the complaint given by one K. Madhukar, R/o. Nirmal

District registered against the petitioner, the passport of the

petitioner is not being renewed by the passport Authority.

Aggrieved by the same, the petitioner filed the present writ

petition.

3. It is contended by the learned counsel appearing on behalf

of the petitioner that petitioner herein is an accused No.8 in

C.C.No.31/2023 for the offences punishable under Sections 353,

283 r/w 34 IPC and it is pending against the petitioner and the

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petitioner is not even convicted in the said case. Respondent

cannot refuse the issuance of passport of the petitioner on the

ground of the pendency of the aforesaid criminal case against

the petitioner and the said action of the respondent authorities is

contrary to the procedure laid down under the Passports Act,

1967 and also the principle laid down by the Hon'ble Supreme

Court in Vangala Kasturi Rangacharyulu v. Central Bureau

of Investigation 1.

4. It is also relevant to note that the Apex Court in Vangala

Kasturi Rangacharyulu (supra) 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

. 2020 Crl.L.J. (SC) 572

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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.

5. The Apex Court in another 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."

6. The Apex Court in Menaka Gandhi vs Union of

India reported in 1978 (1) SCC 248, held that no person

can be deprived of his right to go abroad unless there is a

law enabling the State to do so and such law contains fair,

reasonable and just procedure. Para 5 of the said

judgment is relevant and the same is extracted below:

"Thus, no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of

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Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports, Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law.

Therefore, such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.

7. The Division Bench of the Apex Court in its

judgment dated 09.04.2019 reported in 2019 SCC online

SC 2048 in Satish Chandra Verma v Union of India (UOI)

and others it is observed at para 5 as under:

"The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage, family and friendship which are the basic humanities which can be affected through refusal of freedom to go abroad and this freedom is a genuine human right."

8. Referring to the said principle and also the

principles laid down by the Apex Court in several other

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judgments, considering the guidelines issued by the Union

of India from time to time, the Division Bench of High

Court of Punjab and Haryana at Chandigarh in Noor Paul

Vs. Union of India reported in 2022 SCC online P & H 1176

held that a right to travel abroad cannot be deprived

except by just, fair and reasonable procedure.

9. 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 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 I 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

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Court, the pendency of a case/cases is not a ground to refuse, renewal or to demand the surrender of a passport.

10. In view of the above, this Court opines that mere

pendency of criminal case is not a ground to decline renewal of

passport. Further, the petitioner is ready to co-operate with the

trial Court in concluding trial. Therefore, the petitioner herein

sought issuance of necessary directions to respondent for

consideration of the application of the petitioner for renewal of

passport. Thus, on the ground of pendency of the above

criminal case, passport cannot be denied to the petitioner.

11. In view of the aforesaid discussion, this writ

petition is disposed of at the admission stage, directing

respondent authorities to renew the passport bearing

No.K9201209 in pursuance to application made by the

petitioner vide File number HY4075214639923 dated

28.03.2023 submitted by the petitioner seeking to

consider his application for issuance of passport duly

taking into consideration the view taken by the High

Courts and Supreme Court in all the Judgments referred to

and extracted above without reference to the pendency of

the proceedings in C.C.No.31 of 2023, subject to the

following conditions:

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i) The petitioner herein shall submit an undertaking

along with an affidavit in C.C.No.31 of 2023, pending

on the file of learned Judicial Magistrate of First

Class, at Khanapur stating that he will not leave

India during pendency of the said C.C. without

permission of the Court and that he will co-operate

with trial Court in concluding the proceedings in the

said C.C.;