Telangana High Court
Prashanth Kumar Gopishetty vs The Union Of India on 2 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.35064 OF 2023
ORDER:
Heard Mr.K.Venumadha, learned counsel for the
petitioner and learned counsel representing Mr.Gadi
Praveen Kumar, learned Deputy Solicitor General of India
appearing on behalf of respondents.
2. The prayer as sought for by the petitioner in the
present writ petition reads as under:
"...to issue an order or direction more
particularly one in the nature of writ of mandamus or
any other appropriate writ declaring the action of the
respondent No 2 authority in passing the orders in
No HYD/30/POL/PIC/1030/2023 dated 20122023
directing the petitioner to surrender his passport
bearing No Z7383982 dated 07082023 within 15
days failing which action will be initiated against the
petitioner and further saying that the said authority
has no objection to restore the passport of the
petitioner on production of acquittal order from the
concerned court is nothing but arbitrary illegal null
and void and violative of principles of natural justice
and also violative of Articles 14 and 21 of the
Constitution of India Consequently set aside the
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above said orders of the respondent No.2
authority..."
3. The case of the petitioner in brief is that the petitioner
herein had applied for issuance of passport bearing No.Z7383982
dated 07.08.2023 to the 2nd respondent - Regional Passport
Officer, Secunderabad. The same was not considered by the
respondents on the ground that, the petitioner is accused in SC
No.0700040/2016 on the file of Hon'ble VII Additional Sessions
Judge's Court-cum-the Special Court for Trial of SC's and ST's
(POA) Act, registered for the offences punishable under Sections
448, 427, 506, 323 read with Section 34 of IPC and under
Section 3(1)(X) of Scheduled Casts and Scheduled Tribes (POA)
Act, in Kushaiguda Police Station, in FIR No.350 of 2014.
Further it is the case of the petitioner that the 2nd
respondent authority had issued proceedings
No.HYD/30/POL/PIC/1030/2023 dated 20.12.2023, directing the
petitioner to surrender his passport bearing No.Z7383982, dated
07.08.2023, within 15 days failing which action will be taken
against the petitioner and further it is stated through the said
proceedings dated 20.12.2023 that the 2nd respondent authority
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has no objection to restore the passport facility to the petitioner
on production of acquittal order. Hence the present writ petition.
4. Learned counsel appearing on behalf of the 2nd
respondent - Regional Passport Authority, Secunderabad,
brings on record the written instructions dated
02.02.2024, in particular, the relevant paras, read as
under:
"2. The file was granted with Post Police Verification and
a new Passport bearing No.Z7383982 dated 07.08.2023
validity upto 06.08.2033 was issued to the petitioner.
3. This office received adverse police verification report
stating that the petitioner is involved in
C.C.No.SC/0700040/2016 U/s 448, 427, 506, 323 R/w 34
IPC and Sec 31 of SC/ST POA Act in Kushaiguda PS vide
FIR No.350/2014 at 7th Sessions Court for trial of SC/ST
cases, District Court, Ranga Reddy.
4. This office has issued a show cause notice dated
02.12.2023 to furnish his explanation for suppression of
information regarding his pending case in his online
application. The suppression attracts Section 10(3)(b) of
the Passports Act, 1967.
5. This office received a reply from the petitioner letter
dated 07.12.2023 stating that he felt the case registered
against him is only a civil dispute and no need to give the
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details and it happened by clerical mistake and not
intentionally suppressed the information."
5. Learned counsel appearing on behalf of the petitioner
submits that in response to the show cause notice dated
02.12.2023, the petitioner submitted an explanation dated
07.12.2023 and contends that there had been no deliberate
suppression on the part of the petitioner and further in view of
the fact that the said case SC No.0700040/2016 is an offshoot of
a civil dispute and further there is an injunction order in favour
of the petitioner and as against the person at whose instance the
said criminal case SC No.0700040 of 2016 had been initiated.
Further in view of the fact that as it is only a civil dispute, the
petitioner due to inadvertence did not give particulars about the
said case and that it was not in deliberate suppression by the
petitioner. Without considering the explanation of the petitioner
the order impugned dated 20.12.2023 had been passed.
6. The order impugned dated 20.12.2023 passed by the
2nd respondent, reads as under:
"This refers to your explanation letter in response to
the show cause notice dated 02.12.2023 issued to you.
2. In this regard, you are hereby directed to surrender
your passed bearing No.Z7383982 dated 07.08.2023
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within 15 days, failing which necessary action will be
initiated in accordance with the sections 10(3)(b) & (e) of
the Passport Act, 1967 without further notice.
3. However, this office has no objection to restore
passport facilities to you on production of acquittal order or
permission to travel abroad from the trial Court where the
criminal proceedings are pending against you."
PERUSED THE RECORD.
7. This court opines that pendency of criminal case against
the petitioner cannot be a ground to deny issuance 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.
8. It is also relevant to note that the Respondents cannot
refuse the renewal 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 respondents is contrary to
the procedure laid down under the Passports Act, 1967 and also
the principle laid down by the Hon'ble Supreme Court reported in
2020 Crl.L.J. (SC) 572 in Vangala Kasturi Rangacharyulu v.
Central Bureau of Investigation.
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9. 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
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 issue the
passport of the applicant without raising the objection relating to
the pendency of the aforesaid criminal appeal in S.C.
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10. 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."
11. 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
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
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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.
12. 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
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."
13. Referring to the said principle and also the principles
laid down by the Apex Court in several other 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
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a right to travel abroad cannot be deprived except by just,
fair and reasonable procedure.
14. 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, 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 Court, the
pendency of a case/cases is not a ground to
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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."
15. In view of the above, this Court opines that mere
pendency of criminal case is not a ground to decline issuance of
passport. Further, the petitioner is ready to co-operate with the
trial Court in concluding trial. Therefore, the petitioner herein
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sought issuance of necessary directions to respondents for
consideration of the application of the petitioner for issuance of
passport. Thus, on the ground of pendency of the above criminal
case, passport cannot be denied to the petitioner.
16. The show cause notice issued to the petitioner dated
02.12.2023 indicates that on the ground of suppression of
the material information in the petitioner's passport
application pertaining to SC/0700040/2016 and FIR
No.350 of 2014 registered against the petitioner, the
order impugned had been passed. This Court opines that
the pendency of the said case cannot be a ground to
impound the passport and the petitioner explained the
circumstances in which the petitioner did not furnish the
details pertaining to the case, registered against the
petitioner vide his explanation dated 07.12.2023 which
apparently had not been considered by the passport
authority, because the order impugned dated 20.12.2023
neither refers to the pleas put forth by the petitioner in
his explanation dated 07.12.2023 nor indicates any
discussion on record evidencing the explanation of the
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petitioner dated 07.12.2023 having been considered by
the 2nd respondent herein.
17. Taking into consideration the aforesaid facts and
circumstances of the case and also the law laid down by
the Apex Court and other High Courts Judgments
(referred to and extracted above), the order impugned
dated 20.12.2023 is set aside and the 2nd respondent is
directed to consider the explanation dated 07.12.2023
furnished by the petitioner in response to the show cause
notice dated 02.12.2023 issued by the 2nd respondent,
duly taking into consideration the view taken by the Apex
Court and other High Courts Judgments referred to and
extracted above, within a period of two (02) weeks from
the date of receipt of a copy of the order and pass
appropriate reasoned order in accordance to law and duly
communicate the decision to the petitioner. Till the above
exercise as indicated above is initiated and concluded, the
2nd respondent is directed not to insist for surrender of
petitioner's passport bearing No.Z73833982, dated
07.08.2023.
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18. With the above said observations, the writ petition is
disposed of. However there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the
writ petition shall also stand closed.
__________________
SUREPALLI NANDA,J
Date:02.02.2024.
Yvkr
