Prabhakar Kambalapadu Edige vs The Union Of India
2024 Latest Caselaw 584 Tel

Telangana High Court

Prabhakar Kambalapadu Edige vs The Union Of India on 13 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA

              WRIT PETITION No.1752 of 2024

ORDER:

Heard Mr.Gunna Raghu Chandra, learned counsel

appearing on behalf of the petitioner and Sri Gadi Praveen

Kumar, learned Deputy Solicitor General of India

appearing on behalf of the respondents.

2. The case of the petitioner in brief as per the

averments made by the petitioner in the affidavit filed by

the petitioner in support of the present writ petition is :-

The petitioner herein had applied for the passport and

passport bearing No.G9724511 was issued on 14.07.2008, but

the same was lost. A fresh passport vide passport No.L4119964,

File No.HY3077181757913 was issued on 30.08.2013 and the

date of expiry for the said passport was 29.08.2023, which was

issued on 30.08.2013. Further, the pages in Passport

No.L4119964 were exhausted, the petitioner engaged the

services of a known acquaintance for renewal of his passport,

vide application Ref.No.23-1003339735, dated 29.03.2023 and

application was submitted online for reissuance of passport.

While things stood thus, respondent No.2 issued the notice,

SN, J

dated 19.05.2023, vide No. HYD075249147123 intimating the

petitioner about the pendency of case and advising the petitioner

herein to clarify on pending Cr.No.425 of 2020, Cr.No.427 of

2020.

3. Complaints/cases filed against the petitioner are as

under:

(i) FIR No.405 of 2018 dated 14.07.2018 on the file of Machavaram Police Station for the alleged offences U/s.469 of Indian Penal Code.

(ii) FIR No.71 of 2020 dated 05.02.2020 on the file of Machavaram Police Station for the alleged offences U/s.419 & 420 of Indian Penal Code.

(iii) FIR No.210 of 2019 dated 31.08.2019 on the file of Ananthapur IV Town Police Station for the alleged offences U/s. 408, 420 and 468 of Indian Penal Code.

(iv) FIR No.427 of 2020 dated 08.07.2020 on the file of Kurnool II Town Police Station for the alleged offences U/s. 506 read with 31 of Indian Penal Code and Section 3 (1) (r), 3(1) (s) of SC ST POA Act.

(iv) FIR No.425 of 2020 dated 08.07.2020 on the file of Kurnool II Town Police Station for the alleged offences U/s. 160 of Indian Penal Code, which was taken cognizance as STC No.1724 of 2022 on the file Judicial First Class Magistrate, Kurnool and the said case is posted on 17.05.2023.

SN, J

4. It is further the case of the petitioner that the above

mentioned details of the complaints were not furnished while

submitting the application form for re-issuance of passport vide

File No.HYD075249147123 and the above mentioned cases were

not in the knowledge of the petitioner at the time of renewal

application form. As such non-mentioning of the above-

mentioned cases during the submission of renewal application

form was neither willful nor wanton but for the inadvertent

reasons. Hence, the present writ petition.

5. Respondent No.2 cannot refuse the renewal of passport of

the petitioner on the ground of pendency of the aforesaid

criminal case against the petitioner and the said action of the

respondent 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

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

the provisions of the Passports Act, 1967, pendency of criminal

cases and held that refusal of a passport can be only in case

SN, J

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.

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:

"The law presumes an accused to be innocent till his guilt is proved. As a presumable innocent person, he is entitled to

SN, J

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.

SN, J

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 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."

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

SN, J

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

SN, J

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."

12. 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 No.2 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.

SN, J

13. In view of the aforesaid discussion, this writ petition

is disposed of at the admission stage, directing

respondent No.2 to consider the application vide File

No.HY3077181757913 dated 29.03.2023 submitted by the

petitioner seeking to renew 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 without reference to the pendency of the

proceedings in S.T.C No.1724 of 2022, subject to the

following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in S.T.C.No.1724 of 2022, pending on the file of Judicial First Class Magistrate, Kurnool, stating that he will not leave India during pendency of the said S.T.C. without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said S.T.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 renewal of his passport;

SN, J

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 renewal of his passport in accordance with law, within three (03) weeks from the date of said application;

v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the trial Court in S.T.C. No.1724 of 2022; 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.

As a sequel, miscellaneous petitions, if any, pending

in the writ petition shall also stand closed. However, in the

circumstances of the case, there shall be no order as to costs.

__________________________ MRS JUSTICE SUREPALLI NANDA

Date: 13th February, 2024 ssm