Rahul Vaskula vs The Union Of India
2024 Latest Caselaw 465 Tel

Telangana High Court

Rahul Vaskula vs The Union Of India on 5 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

          HON'BLE MRS JUSTICE SUREPALLI NANDA

                 WRIT PETITION No.2730 OF 2024


ORDER:

Heard Mr. K. Swetha, learned counsel appearing

on behalf of the petitioner and Mr.Gadi Praveen Kumar,

learned Deputy Solicitor General of India, for

Respondent Nos.1 and 2.

2. The petitioner filed this writ petition seeking the

following relief:

"to issue any order or direction writ or writs more particularly on in the nature of WRIT OF MANDAMUS or any other appropriate writ order or direct respondent No.2 to issue the passport on the name of the Petitioner. Furthermore, it is arbitrary and violative of Article 21 of the Constitution of India to restrain Petitioner from going to abroad and hence prayed this Hon'ble court to pass such other...."

3. The case of the petitioner as per the averments made

by the petitioner in support of the present writ petition is that

the petitioner is a resident of Kazipet, Warangal. He had

graduated and desired to pursue higher studies at abroad. He

applied for the Master of Science in Information and

Technology at University of Central Lancashire, UK and paid

the requisite fee also to the said university. The petitioner 2 WP_2730_2024 SN,J

had applied for issuance of passport with File

No.HY75C5027025522, dated 25.04.2022. As there was no

response he made another application vide File

No.HY7065245499523 dated 06.04.2023. While so on

21.01.2019, when the petitioner was returning to home after

attending a party at 11.30 A.M the police personnel has

stopped him and questioned him about his travelling details

during night by abusing him in filthy language due to which

some altercation took place between him and one lady police

officer. Due to which the police personnel filed a case against

him for the offences punishable under Sections 353, 354 &

506 of IPC and the same was numbered as CC No.5632/2022

on the file of I Addl. Junior First Class Magistrate, Warangal.

Thereafter, he received a show cause notice dated

11.06.2022 and 11.05.2023 seeking explanation about

suppression of criminal cases pending against him. The

petitioner replied stating that petitioner was not informed by

the police about registration of FIR against him and during the

second show cause notice period, he could not attend the

Regional Passport Office and pursue the passport vide File

No.HY7065245499523 dated 06.04.2023 as his grandmother

had expired and he had met with an accident. However, as

the respondent authorities did not issue the passport, the 3 WP_2730_2024 SN,J

petitioner has filed the present writ petition for issuance of

passport.

4. Learned counsel for the petitioner contends that the

petitioner is an innocent person and the police have

implicated the petitioner in the above said false cases.

5. Mr.Gadi Praveen Kumar, learned Deputy Solicitor

General of India appearing for respondent Nos.1 and 2

places before this Court a copy of the written

instructions received in this matter, the relevant

portion of paragraph Nos.4 to 8, reads as under:

"4.There is a suppression of previous file No. HY75C5027025522 which is with adverse PVR as the applicant is involved in two criminal cases vide (i) Cr. No. 182/2013 U/s 406, 417, 420, 506, 120-B IPC, Sec 156(3) Cr. PC of M: dikonda PS which is P.T. vide C.C. No. 188/2021 in the Hon'ble 3rd MM Court Warangal, the next date of hearing is ion 14-07-2022 and (ii) Cr. No. 21/2019 U/s 353, 354, 506 IPC of Kazipet PS which is P.T. vide C.C. No. 1794/2019 in the Hon'ble Principal JFCM Court Warangal. The case next date of hearing is on 21-06-2022. The file is not yet closed.

5.The Petitioner has suppressed his previous file details and applied as fresh issue which attract Section 10(3)(b) of the Passports Act, 1967.

6.It is submitted that admittedly there is pending criminal cases, whenever such pendency is brought to the notice of the Passport Issuing Authority, provisions of Section 6(2)(f) of the Passports Act, 1967 are 4 WP_2730_2024 SN,J

attracted which are reproduced herein under for ready reference of this Hon'ble Court:

"Section 6 (2) of the Act - Subject to the other provisions of this Act, the Passport authority shall refuse to issue a Passport or a travel document for visiting any foreign country under clause (C) of Sub-

Section (2) of Section 5 on any one or more the following grounds, and on no other ground, namely

that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court of India".

7. That, the same has further been clarified in the Office Memorandum bearing No. VI/401/1/5/2019 dated 10- 10-2019 issued by the Joint Secretary (PSP) & Chief Passport Officer, PSP Division, Ministry of External Affairs, Govt of India at its Para-5 (ix) that -

"If it is brought to the notice of the authority that an applicant has criminal proceedings arrayed against applicant may be advised to get NOC from all the concerned court(s).

6. 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".

5 WP_2730_2024 SN,J

7. 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 renew the passport of the applicant without

raising the objection relating to the pendency of the aforesaid

criminal appeal in S.C. 6 WP_2730_2024 SN,J

8. 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."

9. 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 7 WP_2730_2024 SN,J

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.

10. 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."

11. 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 8 WP_2730_2024 SN,J

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.

12. 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 9 WP_2730_2024 SN,J

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 10 WP_2730_2024 SN,J

(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."

13. 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 issuance of passport. Thus, on the ground of

pendency of the above criminal case, issuance of passport

cannot be denied to the petitioner.

14. This Court opines that pendency of criminal cases

cannot be a ground for denying passing of orders on

the application of the petitioner seeking issuance of

passport or renewal of passport.

11 WP_2730_2024 SN,J

15. Taking into consideration the averments made by

the petitioner at Paragraph No.12 of the affidavit filed

by the petitioner in support of the present writ petition

that the petitioner made yet another application dated

06.04.2023 and in pursuance to the said application

dated 06.04.2023, a show cause notice dated

11.05.2023 had been issued to the petitioner by the 2nd

respondent calling upon the petitioner to submit the

explanation with regard to suppression of the criminal

cases pending against the petitioner, the petitioner is

directed to furnish explanation to the show cause

notice dated 11.05.2023 to 2nd respondent, within a

period of two (02) weeks from the date of receipt of a

copy of this order. Upon the petitioner furnishing the

explanation to the show cause notice dated 11.05.2023

issued to the petitioner by the Regional Passport

Officer, Secunderabad in pursuance to the petitioner's

latest application dated 06.04.2023, seeking issuance

of passport, the Regional Passport Officer,

Secunderabad shall consider the said explanation

furnished by the petitioner and also the application

dated 06.04.2023 of the petitioner vide File 12 WP_2730_2024 SN,J

No.HY7065245499523 seeking issuance of passport, in

accordance to law duly considering the law laid down

by the Hon'ble Apex Court and other High Courts,

referred to and extracted above, without reference to

the Criminal Cases pending against the petitioner with

the following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in CC.No.2632/2022 pending on the file of I Addl. Junior First Class Magistrate, Warangal 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's.;

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 issuance 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 undertaking given by the petitioner for issuance of his passport in accordance with law, within three (03) weeks from the date of said undertaking;

13 WP_2730_2024 SN,J

v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the trial Court in CC.No.2632/2022 pending on the file of I Addl. Junior First Class Magistrate, Warangal; 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.

With the above observations, the writ petition is

disposed of. However there shall be no order as to

costs.

Miscellaneous petitions, if any, pending in this Writ

Petition, shall stand closed.

__________________________________ MRS JUSTICE SUREPALLI NANDA

Date:05.02.2024.

HK 14 WP_2730_2024 SN,J

HON'BLE MRS JUSTICE SUREPALLI NANDA

WRIT PETITION No.2730 OF 2023

Date:05.02.2024

HK