Telangana High Court

Pavan Kumar Naineni vs The Union Of India on 12 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA

                    W.P.No.34602 of 2023


ORDER:

The petitioner approached this Court seeking the

relief 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 addressing a letter No.HY1075722230323, dated 06.10.2023, saying that Petitioner application for reissuing the passport by replacing the correct name of the wife of the petitioner i.e., Divya Rakshitha Naineni and the present address of the petitioner i.e., Sky Villa I-3202, Plot No.22 to 24, Sy.No.83/1, My Home Bhooja, Opp. T-Hub, Raidurg- 500032, Cyberabad-Ranga Reddy, Telangana, will be considered only after submitting 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 direct the respondent No.2 authority to reissue the passport in favour of the petitioner immediately in place of his old passport bearing No.R0633919, by entering the present name shown above of the wife of the petitioner and the present address as shown above, considering the

application of the petitioner dated 27.06.2023, and to pass such other order or orders."

2. It is the specific case of the petitioner that in response

to the notice, dated 12.12.2023 issued by Regional Passport

Officer, the petitioner had submitted a detailed explanation,

dated 03.01.2024 giving details about the Crime No.180 of

2020 registered against the petitioner. Further, vide Letter

No. HY1075722230323 dated 06.10.2023 a reference is made

to Crime No.180 of 2020 registered and pending against the

petitioner and he was informed that his request of seeking

passport made by him vide file No.HY1075722230323, dated

28.08.2023 would be considered upon the petitioner

submitting acquittal order from the case or obtaining

permission to travel abroad from the same Court. It is further

the case of the petitioner that vide notice dated 12.12.2023

certain clarifications were called for from the petitioner in

response to petitioner's request for issuance of passport

facilities to the petitioner pertaining to Crime No.180 of 2020

registered against the petitioner for the offences under

Sections 448, 427, 143, 147 read with 149 of Indian Penal

Code against the petitioner on the file of P.S. Begum Bazar,

Hyderabad, which was taken cognizance as C.C.No.932 of

2021 on the file of XVII Additional Chief Metropolitan

Magistrate, Hyderabad and the petitioner submitted a detailed

explanation dated 03.01.2024 which has been acknowledged

by the office of the Regional Passport Office, Secunderabad.

But, further, no action has been initiated on the said

application of the petitioner, dated 28.08.2023 seeking re-

issuance of the passport by entering the correct name of the

wife of the petitioner i.e., Divya Rakshitha Naineni by

incorporating the present address of the petitioner as under;

" correct name of the wife of the petitioner i.e., Divya Rakshitha Naineni and the present address of the petitioner i.e., Sky Villa I- 3202, Plot No.22 to 24, Sy.No.83/1, My Home Bhooja, Opp. T-Hub, Raidurg-500032, Cyberabad-Ranga Reddy, Telangana."

Hence, the present Writ Petition.

PERUSED THE RECORD.

3. This court opines that pendency of criminal case

against the petitioner cannot be a ground to deny

re-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.

4. It is also relevant to note that the Respondents

cannot refuse the re-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 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 in 2020 Crl.L.J.(SC) 572 in "Vangala Kasturi

Rangacharyulu v. Central Bureau of Investigation".

5. 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 re-issue the passport of the applicant

without raising the objection relating to the pendency

of the aforesaid criminal appeal in S.C.

6. 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."

7. 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.

8. 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."

9. 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.

10. 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 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."

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

pendency of criminal case is not a ground to decline

re-issuance of passport. Further, the petitioner herein

is ready to co-operate with the trial Court in concluding

trial. Therefore, the petitioner herein sought

re-issuance of necessary directions to respondents for

consideration of the application of the petitioner for

re-issuance of passport. Thus, on the ground of

pendency of the above criminal case, passport cannot

be denied to the petitioner.

12. In view of the aforesaid discussion, respondent No.2

shall consider the application of the petitioner seeking

re-issuance of the passport duly taking into consideration the

view taken by the High Courts and Supreme Court in all the

Judgments referred to and extracted above, duly considering

the explanation of the petitioner, dated 03.01.2024 submitted

by the petitioner in response to the notice, dated 12.12.2023

issued to the petitioner by the Regional Passport Officer,

Secunderabad, within a period of two (2) weeks from the date

of receipt of a copy of this order and pass appropriate orders

in accordance to law, without reference to the pendency of the

proceedings in C.C. No.932 of 2021, and duly communicate

the decision to the petitioner, subject to the following

conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in C.C. No.932 of 2021, pending on the file of XVII Additional Chief Metropolitan Magistrate, stating that the petitioner 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.;

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 No.2-Passport Officer for re-issuance of his passport;

iv) The Respondent No.2-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 re-issuance of passport in accordance with law, within two (03) weeks from the date of said application;

v) On re-issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in C.C. No.932 of 2021;

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.

13. It is however observed that it is open for the

Regional Passport Office Authority to follow up the

petitioner to furnish additional documents if required

and the petitioner shall cooperate and furnish the same

to the Regional Passport Office Authority.

14. With these observations, this 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

Note:Furnish CC by tomorrow