Sri Satya Reddy Yallammagary vs The Union Of India
2024 Latest Caselaw 586 Tel

Telangana High Court

Sri Satya Reddy Yallammagary vs The Union Of India on 13 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA

              WRIT PETITION No.3141 OF 2024
ORDER:

Heard Mr. Md. Arshad Ahmed, learned counsel

appearing on behalf of the petitioner and Mr. T.Srujan

Kumar Reddy, learned Standing Counsel for Central

Government, appearing on behalf of the respondents.

2. The petitioner filed the present to issue an appropriate

writ, order or direction more particularly one in the nature of

Writ of Mandamus declaring the inaction of the respondent

No.2 in renewing the passport after submission of application

as per the provisions of Passport Act vide Application Form

vide ARN:22-1009176389, dated 12.08.2022, Old passport

No. K1874760, File No.HY75C5068609322 as illegal, arbitrary,

unconstitutional violative of Article 21 of the Constitution of

India apart from being in violation of principles of natural

justice and contrary to the provisions of Passport Act and

Rules made thereunder, consequently direct the respondent

No.2 to renew and release petitioner passport bearing Old

Passport No.K1874760, File No. HY75C5068609322, dated

12.08.2022.

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3. The case of the petitioner, in brief, is that the petitioner

herein has applied for renewal of passport bearing

No.K1874760. The petitioner has submitted online application

bearing No.HY75C5068609322 dated 12.08.2022 with

respondent No.2 along with all the requisite documents and

fees prescribed, with a request to renew the said passport.

The same was not considered by the respondent on the

ground that the petitioner is an accused in criminal cases vide

C.C.No.262 of 2017 under Sections 270, and 284 IPC,

C.C.No.1175 of 2019 under Section 374 Indian Penal Code

and Sections 3, 7, 8, 14 of Child Labour Act and C.C.No.724

of 2020 under Section 374 of IPC, and Sections 3, 7, 8, 14 of

Child Labour Act and on the file of I Additional Judicial

Magistrate of First Class at Gadwal. Hence, the present Writ

Petition.

4. Learned counsel appearing on behalf of the petitioner

submits that the petitioner is an accused in C.C.No.262 of

2017 under Sections 270, and 284 IPC , C.C.No.1175 of 2019

under Section 374 Indian Penal Code and Sections 3, 7, 8, 14

of Child Labour Act and C.C.No.724 of 2020 under Section

374 of IPC, and Section 3, 7, 8, 14 of Child Labour Act and on

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the file of I Additional Judicial Magistrate of First Class at

Gadwal and the petitioner was falsely implicated in the said

cases and the police filed Charge Sheets.

5. The learned Standing Counsel for Central

Government, appearing on behalf of respondents,

brings to the notice of this Court the written

instructions, dated 13.02.2024 and in particular,

paragraph Nos.2 and 7 of the said Written Instructions

read as under:

02. "The file was processed with Pre Police verification and received adverse report stating that the petitioner is involved in Cr.No.02/2016 U/s.270, 284 IPC of Gadwal Rural PS, it is PT vide C.C.No.262/2017, case was posted on 10.10.2022 for accused examination and Cr.No.330/2017 U/s.374 IPC, Sec 3, 7, 8, 14 of Child Labour Act of Gadwal Rural PS, it is PT vide C.C.No.1175/2019 posted for notice to sureties on 30.11.2022 and Cr.No.329/2017 U/s.374 IPC Sec 3, 7, 8, 14 of Child Labour Act of Gadwal Rural PS, it is PT vide C.C.No.724/2020, posed for accused appearance on 01.08.2022."

07. This office can reconsider his application, subject to submission of acquittal order from the case or permission to travel abroad from the

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same Hon'ble Court where the criminal case is still pending. In this regard, the Ministry of External Affairs Gazetter Notification vide GSR-

570(E) dated 25.08.1993."

PERUSED THE RECORD.

6. This Court under similar circumstances had passed

orders in writ petitions directing the 2nd respondent-Regional

Passport Authority to consider the application of the

applicants thereunder seeking renewal of passport. The

Respondent cannot refuse the renewal of passport of the

petitioner on the ground of the pendency of the aforesaid

criminal cases 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 Vangala Kasturi Rangacharyulu

v. Central Bureau of Investigation reported in 2020

Crl.L.J (SC) 572.

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

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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 Section 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 before the Apex Court.

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:

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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."

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 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.

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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 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

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.

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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:

"4.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.

5.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

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refuse, renewal or to demand the surrender of a passport.

6. 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.

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

pendency of criminal case is not a ground to decline renewal

and release of passport. Further, taking into consideration

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the submission of the learned counsel for the petitioner that

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 renewal

of passport. Thus, on the ground of pendency of the above

criminal case, passport cannot be denied to the petitioner.

14 Learned counsel appearing on behalf of the respondent

No.2 submits that petitioner failed to submit his explanation

in response to the notice dated 17.11.2022 issued to the

petitioner which pertains to certain clarifications in respect of

the criminal cases pending against the petitioner. The learned

counsel appearing on behalf of respondent No.2 submits that

petitioner's application would be considered in accordance

with law and appropriate orders passed on petitioner's

application dated 12.08.2022 seeking renewal and release of

passport of the petitioner vide Application Form vide ARN 22-

1009176389, dated 12.08.2022, old pass port No.K1874760,

File No. HY75C5068609322, upon the petitioner submitting

his explanation to the notice dated 17.11.2022 issued to the

petitioner, which pertains to certain clarifications in respect of

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the criminal cases pending against the petitioner, within a

reasonable period.

15. In view of the aforesaid discussion, this writ

petition is disposed of at the admission stage, directing

the petitioner to submit petitioner's explanation to the

show cause notice dated 17.11.2022 issued to the

petitioner by the 2nd respondent herein within a period

of one week from the date of receipt of the copy of the

order and the respondents are directed to consider the

application bearing HY75C5068609322 dated

12.08.2022 submitted by the petitioner seeking to

renew and release the passport duly taking into

consideration the explanation to be submitted by the

petitioner in response to the show cause notice letter

dated 17.11.2022 issued to the petitioner within the

time stipulated by this Court 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.262 of 2017 under Sections

270, and 284 IPC, C.C.No.1175 of 2019 under Section

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374 Indian Penal Code and Sections 3, 7, 8, 14 of Child

Labour Act and C.C.No.724 of 2020 under Section 374

of IPC, and Sections 3, 7, 8, 14 of Child Labour Act on

the file of I Additional Judicial Magistrate of First Class

at Gadwal within a period of one week on receipt of the

petitioner's explanation to the show cause notice letter

dated 17.11.2022 issued to the petitioner by the 2nd

respondent herein, subject to the following conditions:-

(i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.262/2017 under Section 270, 284 IPC (for short 'IPC'), C.C.No.1175 of 2019 under Section 374 Indian Penal Code Section 3, 7, 8, 14 of Child Labour Act and C.C.No.724 of 2020 under Section 374 of IPC, Section 3, 7, 8, 14 of Child Labour Act and on the file of I Additional Judicial Magistrate of First Class at Gadwal, stating that he will not leave India during pendency of the said C.Cs. without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said C.Cs.;

(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;

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(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 undertaking given by the petitioner for renewal of his passport in accordance with law, within two (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 C.C.No.262/2017 and CC.No.1175 of 2019 and C.C.No.724 of 2020; 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. No order as to costs.

__________________________ MRS JUSTICE SUREPALLI NANDA

Date: 13th February, 2024 Fm

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HON'BLE MRS JUSTICE SUREPALLI NANDA

DATED:13.02.2024

fm