Telangana High Court

Shaik Musheer vs Union Of India on 21 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA


               WRIT PETITION No.4496 OF 2024
ORDER:

Heard Mr. M.A.K. Mukheed, learned counsel for the

petitioner and Mr.P.Sridhar Reddy, learned Standing

Counsel for Central Government appearing on behalf of

respondent Nos.1 and 2.

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

herein has applied for renewal of passport bearing

No.X6055758. He has submitted online application bearing

No.HY4075800266523 dated 20.09.2023 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 1)Cr.No.125 of

2020 registered for the offence under section 269,270, 353

and 188 read with 34 of IPC which pending before the Judicial

Magistrate of First Class, Bodhan, 2)Cr.No.89 of 2022 was

registered for the offences under sections 147, 14, 307, 353

and 18 read with Section 34 of IPC and 3)Cr.No.210 of 2022

was registered for the offences under Sections 188, 153(a),

145 and 353 read with Section 149 of the IPC.

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It is the specific grievance of the petitioner that, in

response to the letter vide Ref.No.SCN/316499993/23, dated

15.12.2023 issued by the 2nd respondent herein the petitioner

herein furnished his explanation dated 20.09.2023 admitting

that three crimes vide Cr.No.125 of 2020, Cr.No.89 of 2022

and Cr.No.210 of 2022 are registered against the petitioner

and requested the 2nd respondent herein to consider the

petitioner's application dated 20.09.2023 seeking for renewal

of passport vide file No. HY4075800266523 dated 20.09.2023.

Though the 2nd respondent received the said explanation

of the petitioner but however, the petitioner's application

HY4075800266523 dated 20.09.2023 for renewal of passport

vide No.X6055758 had not been considered till as on date.

Aggrieved by the same the petitioner approached this court by

way of filing the present writ petition. 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

Cr.No.125 of 2020, Cr.No.89 of 2022 and Cr.No.210 of 2022

and in Cr.No.125 of 2020 which were registered against the

petitioner, and which are simple in nature the petitioner being

a social worker protested for injustice against the locality

people and the offence itself is civil in nature therefore, the

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police filed charge sheet and removed the name of the

petitioner from Cr.No.125 of 2020.

PERUSED THE RECORD.

4. It is apparent on record that on earlier occasion when

the petitioner filed application for renewal of passport before

the respondents, the respondents herein had renewed the old

passport and issued new passport vide No.X6055758 on

21.02.2023 for a period of one year and the same would

expired on 20.02.2024, hence, the petitioner filed the present

writ petition seeking renewal of the said passport vide

No.X6055758, duly considering petitioner's online application

dated 20.09.2023.

5. This Court under similar circumstances had been passing

orders directing the respondent-Regional Passport Authority to

consider the application of the petitioner 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 respondent is contrary to the procedure laid

down under the Passports Act, 1967 and also the principle laid

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down by the Hon'ble Supreme Court in Vangala Kasturi

Rangacharyulu v. Central Bureau of Investigation 1.

6. 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

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

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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.

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

and another reported in AIR 1978 SC 597, and in Satish

Chandra Verma Vs. Union of India (UOI) and others

reported in 2019 (2) SCC Online SC 2048 very clearly

observed that the right to travel abroad is a part of a

personal liberty and the right to possess a passport etc.,

can only be curtailed in accordance with law only and

not on the subjective satisfaction of anyone. The

procedure must also be just, fair and reasonable

9. The Division Bench of the Apex Court in its

judgment dated 09.04.2019 reported in 2019 SCC online

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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."

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:

"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

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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.

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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. 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 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.

13. In view of the aforesaid discussion, this writ

petition is disposed of at the admission stage, directing

the respondent to consider the application bearing

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No.HY4075800266523 dated 20.09.2023 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 Cr.No.125 of 2020, Cr.No.89 of 2022

and Cr.No.210 of 2022, subject to the following

conditions:

i) The petitioner herein shall submit an undertaking

along with an affidavit in Cr.No.125 of 2020,

Cr.No.89 of 2022 and Cr.No.210 of 2022, 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.;