Telangana High Court

Yaseen Mohammed, vs The Union Of India on 20 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

            HON'BLE MRS JUSTICE SUREPALLI NANDA


              WRIT PETITION No.34039 OF 2023
ORDER:

Heard Mr. T.Surya Satish, learned counsel for the

petitioner and Mrs.Rajya Laxmi, learned Assistant Solicitor

General of India, representing Dy. Solicitor General of

India, appearing on behalf of respondent Nos.1 to 3.

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

herein had applied for renewal of passport vide online application

bearing passport No.L454364 dated 04.10.2023 made through

the Consulate General of India, Dubai to the 2nd respondent -

Regional Passport Officer, Secunderabad, along with all the

requisite documents and fees prescribed, with a request to

renew the passport. The same was not considered by the

respondents on the ground that, the petitioner is accused in

criminal case C.C.No.1176 of 2022 pending on the file of Judicial

First Class Magistrate Court, Sircilla vide FIR No.110 of 2017

dated 30.07.2017 of P.S. Thangallapalli, Rajanna Sircilla District

registered under Section 354(D) of IPC. Hence, the present Writ

Petition.

3. It is contended by the learned counsel appearing on behalf

of the petitioner that petitioner herein is an accused in criminal

case vide C.C.No.1176 of 2022 pending on the file of Judicial

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First Class Magistrate Court, Sircilla vide FIR No.110 of 2017

dated 30.07.2017 of P.S. Thangallapalli, Rajanna Sircilla District.

Therefore, the petitioner sought to issue necessary directions to

the respondents for consideration of the petitioner's application

for renewal of passport.

4. The learned counsel for the petitioner further contends

that, respondents cannot refuse the issuance of passport of 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.

5. The learned counsel representing Dy. Solicitor General of

India, brings on record the Written instructions vide

No.HYD/843/28(226)/POL/LC/2023 UE20750570523, dated

20.02.2024 and in particular paragraph nos.2, 6, 7 and 8 of the

said Written instructions reads as under:

2. The file was processed with Pre Police Verification and received adverse PVR stating that the Petitioner is involved in Cr. No. 110/2017 U / s 354-D IPC of PS Thangalapally, this case is under PT vide C.C. No. 1176/2022 at JFCM Court Sircilla.

6. It is to mention that the present Passport of the Petitioner bearing No. 14584364 has expired its validity on 24-09-2023, the Petitioner has to approach the Consulate General of India at Dubai office for issue of Emergency Certificate under section 4(2)(a) of the Passports Act, 1967 to travel

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to India and can apply from here his re-issue of Passport alongwith permission from the court where the case is pending.

7. This office can reconsider his application, subject to submission of acquittal order from the case or permission to travel abroad from the same Hon'ble Court where the criminal case is still pending. In this regard, the Ministry of External Affairs Gazette Notification vide GSR-570(E) dated 25-08- 1993

8. It is proposed to include The Consulate General of India at Dubai as one of the Respondent since the Petitioner applied there and his file is pending at CGI Dubai."

PERUSED THE RECORD.

6. This court opines that pendency of criminal case against

the petitioner cannot be a ground to deny renewal/issuance of

Passport to the petitioner and the right to personal liberty would

include not only the right to travel abroad but also the right to

possess a Passport.

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

refuse the renewal of passport of 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 in

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Vangala Kasturi Rangacharyulu v. Central Bureau of

Investigation 1.

8. 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

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 issue the

. 2020 Crl.L.J. (SC) 572

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passport of the applicant without raising the objection relating to

the pendency of the aforesaid criminal appeal in S.C.

9. 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."

10. 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,

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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.

11. 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."

12. 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

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a right to travel abroad cannot be deprived except by just,

fair and reasonable procedure.

13. 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.

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14. 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 respondents for

consideration of the application of the petitioner for issuance of

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

criminal case, passport cannot be denied to the petitioner.

15. Taking into consideration the facts and

circumstances of the case and in view of the aforesaid

discussion, this writ petition is disposed of at the

admission stage, directing respondents to consider the

application bearing No.L4584364, dated 04.10.2023

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 criminal case vide C.C.No.1176 of 2022

pending on the file of Judicial First Class Magistrate Court,

Sircilla vide FIR No.110 of 2017 dated 30.07.2017 of P.S.

Thangallapalli, Rajanna Sircilla District, subject to the

following conditions:

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i) The petitioner herein shall submit an undertaking

along with an affidavit in criminal case vide

C.C.No.1176 of 2022 pending on the file of Judicial

First Class Magistrate Court, Sircilla vide FIR No.110

of 2017 dated 30.07.2017 of P.S. Thangallapalli,

Rajanna Sircilla District, stating that he will not leave

India during pendency of the said C.C. without

permission of the Court and that he will co-operate

with trial Court in concluding the proceedings in the

said C.C.;