Sangepu Sravan Kumar vs The Union Of India
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Telangana High Court

Sangepu Sravan Kumar vs The Union Of India on 15 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

      HON'BLE MRS JUSTICE SUREPALLI NANDA

           WRIT PETITION No.30855 of 2023
ORDER:

Heard Mr. Pattem Venkateswarlu, learned counsel

for the petitioner and Sri Gadi Praveen Kumar, learned

Deputy Solicitor General of India appearing for

respondents.

PERUSED THE RECORD.

2. The prayer as sought for by the petitioner in the

present writ petition reads as under:

"to issue an appropriate writ or order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the rd respondents particularly 3 respondent has issued a letter to the petitioner on 19.07.2023 stating that they can consider his application, if he submitted acquittal order from the Court or obtain permission to travel abroad from the same the Learned Court where the criminal court is still pending. Therefore the petitioner's passport is "On hold" status and not issuing passport in spite of his due application and compliance with all requisite parameters, without processing and finalizing the same as illegal, irregular, irrational and violate of the provisions of the Passports Act, 1967 and Offends Articles 14, 19 and 21 of Constitution of India and consequently direct the respondents to process, finalize and to issue passport in favor of the petitioner and pass such other order or orders"

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3. A perusal of the record would reveal that the petitioner

herein is an accused in Cr.No.339 of 2023 registered for the

offences punishable under Sections 498-A, read with 34 of

IPC and 3, and 4 D.P Act and after completion of

investigation, the Investigating Officer had filed charge sheet

and the same was taken on file as C.C.No.882 of 2023 which

is pending on the file of the IV Additional Junior Civil Judge-

cum- XV Additional Metropolitan Magistrate, At Kukatpally.

4. 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 went to Ireland in the year, 2008 and worked

part time jobs for his livelihood. In the year, 2013 he had

completed MS Computers in Ireland and is presently working

as a software employee and he is a permanent resident of

H.No.3-2-320, Plot No.159, SBH Colony, L.B Nagar, Ranga

Reddy District, Telangana, he was born and brought up in

Telangana. His wife got pregnant and came to India for

delivery purpose and they were blessed with a female child.

He applied visa for his wife and daughter but they refused to

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come to Ireland as advised by her parents. In the month of

November, 2022 he came to Hyderabad and his wife

blackmailed emotionally and did not allow the petitioner to go

to Ireland but asked the petitioner to live in Hyderabad

otherwise she threatened to give divorce to the petitioner she

even blackmailed the petitioner that she will attempt suicide.

Further, his wife and her parents without his consent took

petitioner's passport, including bank cards. Petitioner lodged a

complaint in Cr.No.534 of 2023 for the offences punishable

under Sections 448, 323, 506, 380, 504 read with 34 of

Indian Penal Code. Subsequently, charge sheet was filed and

the same was numbered as C.C.No.1961 of 2023 on the file of

II Metropolitan Magistrate, L.B Nagar, Ranga Reddy District.

Further, petitioner filed a divorce application on the ground of

cruelty in FCOP No.586 of 2023, on the file of II Additional

Judge, Family Court, Ranga Reddy District, L.B Nagar.

Petitioner has been living in Ireland for more that fifteen

years. But due to the matrimonial disputes between petitioner

and his wife and due to not being in possession of petitioner's

passport, petitioner could not go back to Ireland to continue

his job. Petitioner applied for passport before respondent No.3

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by enclosing requisite documents on 09.06.2023 and in

compliance of all requisite formalities, petitioner even

appeared for personal interview on 16.06.2023 before

respondent No.3. Further, the petitioner approached

respondent No.3 with a request to process his application and

finalize the same in his favour by granting passport.

Respondent No.3 orally stated to the effect that the 3rd

respondent could not issue, passport to the petitioner, since

the proceedings in C.C.No.882 of 2023 on the file of IV

Additional Junior Civil Judge-cum-XV Additional Metropolitan

Magistrate at Kukatpally are pending, the respondent No.2

issued notice on 19.07.2023, asking the petitioner to furnish

the acquittal order from the Court or obtain permission to

travel abroad from the same Court where the criminal case is

still pending. Hence, the writ petition.

5. Learned counsel appearing on behalf of

respondents brings on record the written instructions,

para Nos. 9, 10 and 11 reads as under:

" 9. Wherefore, the O/o the Respondent served a refusal letter dated 19.07.2023 requesting to submit final disposal order of C.C.No.882 of 2023 to process his application or NOC from the concerned courts where the

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criminal cases against the Petitioner are pending in line with Notification bearing No.G.S.R.570 (E) dated 25.08.1993 issued by the Ministry of External Affairs, Government of India. However, the petitioner has not produced the required NOC till date.

10. Meanwhile, with regards to the complaint of the Petitioner stating that his spouse has taken away his Passport No.R5477031, the O/o respondent had issued a letter vide HYD/PCC/214/2023, dated 19.07.2023 and advising her to hand over the said passport to the petitioner.

11. However, a reply dated letter dated 25.07.2023 was received from her denying the allegation of having the passport.

PERUSED THE RECORD

6. This Court opines that pendency of a criminal case

cannot be a ground to refuse issuance of passport or to

deny renewal of passport.

7. The Apex Court in the 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."

8. The Apex Court in Menaka Gandhi v Union of India

reported in 1978 (1) SCC 248, held that no person can

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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.

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:

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"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 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

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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 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

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(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. It has been observed by the Hon'ble High Court of

Madhya Pradesh (Indore Bench) reported in 2022 AIR

(MP) 57 in Hardik Shah Vs. Union of India that

"pendency of matrimonial cases alone cannot be a

ground to decline renewal of passport." In view of the

discussion above, this Court opines and concludes that

pendency of the matrimonial/criminal cases alone

cannot be a ground to decline renewal of passport.

13. This Court opines that freedom to go abroad has

much social value and represents the basic human right

of great significance. It is settled law that the right to

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travel is a part of the right to life and personal liberty

guaranteed under Article 21 of the Constitution of India,

1950.

14. Taking into consideration the aforesaid facts and

circumstances of the case and duly considering the

view taken by the Apex Court and other High Courts in

the various judgments (referred to and extracted

above) and duly considering the submissions made by

both the learned counsel on record, the writ petition is

allowed and the impugned order dated 19.07.2023

issued by the 3rd respondent is set aside and the 3rd

respondent is directed to consider the application

bearing No.HY75C5054623923, dated 22.06.2023

submitted by the petitioner seeking to issue 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 criminal cases, subject to the

following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.882 of 2023 on

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the file of IV Additional Junior Civil Judge-cum-XV Additional Metropolitan Magistrate at Kukatpally, stating that he will not leave India during pendency of the said case without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said case.;

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

v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in C.C.No.882 of 2023 on the file of IV Additional Junior Civil Judge-cum-XV Additional Metropolitan Magistrate at Kukatpally; and

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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, the miscellaneous petitions, if any, pending

in the Writ Petition shall also stand closed. However, there

shall be no order as to costs.

_________________ SUREPALLI NANDA, J Date:15.02.2024 ssm