Mr. Bharat Kumar Thota vs Union Of India
2024 Latest Caselaw 458 Tel

Telangana High Court

Mr. Bharat Kumar Thota vs Union Of India on 5 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA


             WRIT PETITION No.1954 OF 2024
ORDER:

Heard Sri Chikkudu Prabhakar, learned counsel for

the petitioner and Sri. 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 a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of the Respondent No.2 in not renewing the passport by keeping the application pending vide File. No. HY1073960595922, dated: 16.02.2022 is illegal, arbitrary, violative of the principles of the natural justice, against the settled principles of law and also violative of Articles 14, 19 and 21 of the Constitution of India and set aside the same and consequently direct Respondent No.2 to renew the passport of the petitioner pursuant to the application vide file no:

HY1073960595922, dt. 16.02.2022, forthwith and to pass such other order or order as this Hon'ble Court may deem fit and proper in the circumstances of the case ......."

3. It is the specific case of the petitioner that certain

clarifications were sought by letter dated 27.04.2022 calling

upon the petitioner to inform about the criminal cases pending

against the petitioner and the petitioner had replied to the said

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notice dated 27.04.2022 issued to the petitioner vide letters

dated 13.01.2023 and 10.01.2023 but however no order has

been passed on the petitioner's application vide file

No.HY1073960595922 dated 16.02.2022. Pendency of the

criminal case is not a bar for renewal of the passport application.

Hence, the writ petition.

PERUSED THE RECORD.

4. 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.

5. 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.

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

Kasturi Rangacharyulu (supra) had an occasion to examine

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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.

7. 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:

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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."

8. 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 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.

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9. 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."

10. 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

a right to travel abroad cannot be deprived except by just,

fair and reasonable procedure.

11. 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:

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"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 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

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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."

12. Learned counsel for the petitioner relied on Para Nos.3

and 4 of the writ affidavit which reads as under:

"3. It is respectfully submitted that the petitioner is working as Chief Operating Officer /COO in the Andhra Pradesh Food Processing Society (APFPS), Vijayawada, from 7-9-2021. He is appointed for the period of 5 years w.e.f from 7.9.2021 through Proceedings No. AGC03-12024/32/2021-DD-HORTI Dt:24.9.2021. It is further submitted that from 19.2.2024 to 23.2.2024 Gulf food festival is to be held in the Dubai. In view of developing food processing industry in the Andhra Pradesh State as a chief Operating Officer/COO Petitioner have to attend Gulf Food Festival for welfare of the State.

4. It is respectfully submitted that it is the work of the state Government of Andhra Pradesh to visit Gulf Food Festival and make Andhra Pradesh Government food

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processing sector attractive for both domestic and foreign investors. The food festival is being conducted every year due to non-reissuance of passport the petitioner could not attend the food Festival. That the petitioner has applied for reissuance of passport vide File HY1073960595922, dated: 16,02.2022. I have attended for interview and verification, but the respondent authority after verification kept the said application of the petitioner on Hold. Thereafter Respondent No.2 has issued a letter ref No. SCN/312528385/22, dated: 27.4.2022 stating to submit a clarification regarding pending criminal case against the petitioner. It is further submitted that petitioner has submitted his explanation. Again another letter was issued with ref no. SCN/3136662663/22, dtd: 7.11.2022 for the same petitioner has given clarification on 14.2.2023 through mail but there is no response from the authorities. The Petitioner have been following up with the 2nd respondent to reissue the passport, but it has been kept pending".

13. 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

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.

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14. Taking into consideration of the averments made at

Para Nos. 3 and 54 of the affidavit filed by the petitioner,

this writ petition is disposed of, directing the respondent

No.2 to consider the application bearing

No.HY1073960595922, dated 16.02.2022, submitted by

the petitioner seeking to renew the passport without

reference to the pendency of the proceedings subject to

the following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in Crime No. 180/2018, under Sections 120b, 323, 420, 468, 471, 474, 447, 506 r/w 34 IPC dated 21.03.2018 on the file of ACP, Kazipet, stating that he will not leave India during pendency of the said case without permission of the Court and that he will cooperate with trial Court in concluding the proceedings in the said case.

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 therefrom;

iii) The petitioner herein shall submit certified copy of aforesaid undertaking before the Respondent-

Passport Officer for renewal of his passport;

iv) The Respondent-Passport Officer shall consider the said application in the light of the observations made by this Court herein as well as the contents of the

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undertaking given by the petitioner for renewal of his passport in accordance with law, duly considering the law laid down by Hon'ble Apex Court and other Judgments of referred above and pass appropriate orders within a period of one week from the date of receipt of a copy of this order duly indicating the decision to the petitioner.

v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the concerned trial Court in the above said crime and

vi) However, liberty is granted to the petitioner herein to file an application before the trial Court seeking permission to travel aboard and it is for the trial Court to consider the same in accordance with law.

However, in the circumstances of the case, there shall be

no order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the writ petition shall also stand closed.

__________________________ MRS JUSTICE SUREPALLI NANDA

Date: 05th , February, 2024

Note

C.C. by Tomorrow.

(B/o) Skj