Telangana High Court

Mirza Muzzafar Ali Baig vs Union Of India on 19 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

           HON'BLE MRS JUSTICE SUREPALLI NANDA


                      W.P. No. 4203 of 2024
ORDER:

1. Heard Sri M.A.K. Mukheed, learned counsel for the

petitioner and Sri Avinash, learned counsel representing

the Passport Authority/respondent No.1.

2. The petitioner approached this Court with the

following relief :

"....to issue a writ or order more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the Respondent No 2 not making correction of spelling over the Petitioners name as Mirza Muzzafar Ali Baig in place of Mirza Muzaffer Ali Baig and not processing the Petitioners application vide No HY1073585905121 dated 20092021 inspite of representation dated 20012024 made by the Petitioner as illegal arbitrary unjust unconstitutional and in violation of principles of natural justice and consequently direct the Respondent No 2 to make correction of spelling over the Petitioners name as Mirza Muzzafar Ali Baig in place of Mirza Muzaffer Ali Baig by processing the Petitioners application vide No HY1073585905121 dated 20.09.2021 and issue corrected passport to the Petitioner and to pass such other order or orders may deem fit and proper in the circumstances of the case".

SN, J

3. It is the specific case of the petitioner that on

20.09.2021 the petitioner submitted application vide No.

HY1073585905121 for correction of spelling in

petitioner's name as Mirza Muzaffar Ali Baig in place of

Mirza Muzaffer Ali Baig by processing the petitioner's

application No.HY1073585905121 dated 20.09.2021 and

the petitioner received the letter dated 11.10.2021, issued

by the passport Authority and para No.2 of the said letter

dated 11.10.2021, reads as under:

"2. Under the existing provisions and after careful examination of your case, it has been decided by the Competent authority to refuse passport services to you under Section 5 (2)(C) of the Passports Act, 1967, to be read with Section 6 (2)

(f) in view of your pending Court case under in Cr.No. 82/2019, under Sections 448, 427, 504, 506 r/w 34 IPC of Shahalibanda Police Station, vide C.C. No. 10508/2019".

4. It is the specific case of the petitioner that the petitioner

applied for passport on 14.12.2018 and obtained passport which

is valid up to 13.12.2028 and the present application is

pertaining to correction in the name of the petitioner as Mirza

Muzzaffar Ali Baig in place of Mirza Muzaffer Ali Baig which

SN, J

however had not been considered in accordance with law by the

Passport Authority and instead the Passport Authority informed

the petitioner that the competent authority decided to refuse

passport services to the petitioner on the ground of Crime No. 82

of 2019 under Sections 448, 427, 504, 506 r/w 34 IPC of

Shahalibanda Police Station registered against the petitioner.

5. It is also relevant to note that the Respondents cannot

refuse passport services to 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 reported in

2020 Crl.L.J. (SC) 572 in Vangala Kasturi Rangacharyulu v.

Central Bureau of Investigation.

6. It is also relevant to note that the Apex Court in Vangala

Kasturi Rangacharyulu case (cited 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

SN, J

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 passport,

services, or refuse to renew passport on the ground of pendency

of the criminal appeal. Thus, the Apex Court directed the

Passport Authority to issue 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 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

SN, J

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

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

SN, J

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, 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

SN, J

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

SN, J

(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. This Court opines that pendency of criminal offence is not a

ground to refuse passport services to the petitioner. Taking into

consideration the view taken by the Apex Court and other High

Courts in the various judgments referred to and extracted above

and duly considering the fact that the petitioner was issued

passport on 14.12.2018 by the passport authority which is valid

till 13.12.2028 and the present application dated 20.09.2021

only sought correction of the name of the petitioner as Mirza

Muzzafar Ali Baig in place of Mirza Muzaffer Ali Baig the plea

taken by the 2nd respondent at para 2 of the letter dated

11.10.2021 (referred to and extracted above) is untenable and

unwarranted, therefore, the 2nd respondent herein is directed to