Telangana High Court

N.Shyam Sundar Rao vs Union Of Inidia on 13 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

     HON'BLE MRS JUSTICE SUREPALLI NANDA

            WRIT PETITION No.1951 of 2024

ORDER:

Heard Mr. G.L. Narasimha Rao, learned counsel

appearing on behalf of the petitioners and

Mr. Kalvala Sanjeev, learned counsel appearing on

behalf of respondent Nos. 1 and 2.

1. The petitioner Nos.1 and 2 approached this Court

seeking the relief as under:

"to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent who is declining to issue passport to the petitioner No.1 vide his File No.HY1075995577523, letter Ref.No.SCN/ 316528141/23 dated 18.12.2023 and for the 2nd petitioner vide his File No.HY1065996473323 Letter Ref.No.SCN/316527979/23 dated 18.12.2023 and insisting to clear the criminal cases is bad in law, illegal, arbitrary and violating the natural justice, violative of Article 21 of the Constitution of India contrary to the law as the pending criminal cases are no bar to issue passport and the both impugned letter are libel to set a side, consequently direct the respondent No.2 to issue the passport to the petitioners forthwith on their individual applications dated 22.11.2023, as pending

criminal cases on them are no bar to issue the passport to the petitioners and pass such other order or orders."

2. It is contended by the learned counsel appearing on

behalf of the petitioner No.1 and No.2 that the petitioners

herein are accused in C.C.No.4003/2019 and 385 of 2020

U/Sec.448, 324, 427, 506 R/w.34 IPC and C.C.No.2803 of

2022 of P.S.Chilkalaguda, and the same are pending trial and

on the said ground of pendency of criminal cases registered

against the petitioners, orders are not being passed by the

Passport Authority on the applications of the petitioners dated

18.12.2023. Hence aggrieved by the same, petitioners filed

the present writ petition.

3. The learned Standing Counsel for Central

Government, appearing on behalf of respondents,

brings to the notice of this Court the written

instructions vide proceeding No.HYD/843/2B(31)POL/

LC/2024 and the relevant paragraph nos.4, 6, 10 and

17 of the said Written Instructions read as under:

"04. The file was processed with Pre-Police Verification and received adverse PVR stating that the petitioner is involved in Cr.No.385/2020 under Section 448, 427, 506 of IPC R/w 34 IPC of PS Chilkalguda. The case is pending trial vide C.C.No.4003/2019.

6. The Petitioner No.1 previously applied vide File No.HY1073019838320 dated 18.09.2020 and the file was processed with Pre Police Verification and received adverse PVR as the Petitioner No.1 is involved in Cr.No.901/2018 Us 341, 323, 504, 506 IPC of Miyapur PS vide C.C.No.4371/2018 at I-PJCJ Cum VIII AMM Court. The petitioner No.1 approached this office and submitted his request letter dated 21.10.2020 to close the file and accordingly it was closed on 22.10.2020.

10. This office received a letter from Commissioner of Police Hyderabad City vide PVC/SB/HYD/2020 dated 21.09.2020 stating that they have given clear report but to be considered as Adverse since the petitioner No.2 is involved in two pending Court case vide (i) Cr.No.901/2018 U/s.341, 323, 504, 506 of IPC of Miyapur PS.Pending trial in the Hon'ble Court vide C.C.No.4371 of 2018 and (ii) Cr.No.638/2019 U/s.323, 506 of IPC of PS Chilkalguda, Pending Trial in the Hon'ble IX ACMM Court vide C.C.No.4332/2019".

"17. This office can reconsider the applications of petitioner No.1 & 2, if the petitioner's submits acquittal order's from the above cases or obtain permissions to travel abroad from the same Hon'ble Court's where the criminal cases are still pending. In this regard the Ministry of External Affairs Gazettee Notification vide GSR 570(E) dated 25.08.1993".

PERUSED THE RECORD.

4. This Court under similar circumstances had been

passing orders directing the respondent-Regional Passport

Authority to consider the application of the petitioners seeking

issuance of passport. The Respondent cannot refuse to issue

passport to the petitioners on the ground of the pendency of

the aforesaid criminal cases registered against the petitioners

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 in

reported in 2020 Crl.L.J.(SC) 572 "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 petitioners 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 petitioners 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. 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 issuance

of passport. Further, the petitioners are ready to

co-operate with the trial Court in concluding trial. Therefore,

the petitioners herein sought issuance of necessary directions

to respondent for consideration of the application of the

petitioners for issuance of passport. Thus, on the ground of

pendency of the above criminal cases, issuance of passport

cannot be denied to the petitioners herein.

12. In view of the aforesaid discussion, this writ petition is

disposed of at the admission stage, directing the respondents

to consider the application of the petitioner No.1 vide his File

No.HY1075995577523, letter Ref.No.SCN/316528141/23

dated 18.12.2023 and the application of the 2nd petitioner vide

his File No.HY1065996473323 Letter Ref.No.SCN/

316527979/23 dated 18.12.2023, submitted by the

petitioners seeking to issue the passports 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

C.C.No.4003/2019 and 385 of 2020 U/Sec.448, 324, 427, 506

R/w.34 IPC and C.C.No.2803 of 2022 of P.S.Chilkalguda,

subject to the following conditions:

(i) The petitioners herein shall submit an undertaking

before the competent Court along with an affidavit in

C.C.No.4003/2019, C.C.No.385 of 2020 and

C.C.No.2803 of 2022, stating that they will not leave

India during pendency of the said C.Cs. without

permission of the Court and that they will co-operate

with trial Court in concluding the proceedings in the said

C.Cs.;