Salman Khan vs The Union Of India,
2024 Latest Caselaw 741 Tel

Telangana High Court

Salman Khan vs The Union Of India, on 22 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA


                WRIT PETITION No.4658 OF 2024
ORDER:

Heard Ms.Vedula Chitralekha, learned counsel for the

petitioner and Ms.N.V.R. Rajyalakshmi, learned counsel

representing Mr. Gadi Praveen Kumar, Deputy Solicitor

General of India, appearing on behalf of respondents.

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

writ petition reads as under:

".........to issue a Writ or order or direction more particularly one in the nature of Writ of Mandamus to declare the proceedings of the respondent No.2 in HYD/30/POL. PAC/1021/2023, dated 06.02.2024, whereby he directed the petitioner to surrender the Passport bearing No B6537702 dated 20.10.2023, within 15 days on the ground that the petitioner suppressed the pendency of a criminal case in the relevant column of the Passport Application, as arbitrary, illegal and unconstitutional and to issue a consequential direction to the respondents not to revoke the Passport of the petitioner bearing No B6537702 except in accordance with law and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

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

applied for passport to the 2nd respondent on 20.10.2023 on

Tatkal basis and received passport bearing No.B6537702, dated

20.10.2023. The 2nd respondent issued a notice dated

06.02.2023 to the petitioner stating that the petitioner is an

accused in C.C. No. 585 of 2021 on the file of VI Addl. Chief

Metropolitan Magistrate, Hyderabad for the offences under

Section 25 (1)(b) of Indian Arms Act, 1959 and directed the

petitioner to surrender his passport to the passport authority.

On 07.01.2024 the petitioner submitted his detailed explanation

stating that the pendency of criminal case is not a bar to grant

passport facility to the petitioner and the pendency of the

criminal case cannot be a ground to surrender petitioner's

passport bearing No.B6537702 dated 20.10.2023 within 15 days

as stipulated in the notice dated 06.12.2023. Hence the

petitioner filed the present writ petition.

4. Learned counsel appearing for the petitioner submits that

the petitioner herein was falsely implicated in the aforesaid

crime. Further, that the petitioner is also ready to co-operate

with the trial. Therefore, necessary directions may be issued to

the respondents for consideration of petitioner's explanation

dated 07.01.2024 furnished by the petitioner in response to the

notice dated 06.12.2023 issued to the petitioner by the 2nd

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respondent herein. Respondent No.2 cannot refuse to extend

passport facilities to the petitioner on the ground of the

pendency of the aforesaid criminal case against the petitioner

and seek surrender of the said passport of the petitioner. The

said action of the respondent No.2 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 2020 Crl.L.J.(SC)572

in Vangala Kasturi Rangacharyulu v. Central Bureau of

Investigation.

5. 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

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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

passport of the applicant without raising the objection relating to

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

6. 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."

7. 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:

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"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.

8. 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 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."

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9. 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.

10. 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 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

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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 (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."

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

pendency of criminal case is not a ground to decline issuance of

passport facilities to the petitioner and seek surrender of

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passport of the petitioner invoking Sections 10(3)(b) and (e) of

the Passports Act, 1967, on the alleged ground of suppression of

material information which in fact is not intentional or deliberate

as explained by the petitioner in petitioner's detailed explanation

dated 07.01.2024 submitted by the petitioner in response to the

notice dated 06.12.2023 issued to the petitioner seeking certain

clarifications/explanation from the petitioner. 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.

12. It is represented by both the learned counsel for the

petitioner and respondents that the subject issue is squarely

covered by the orders dated 31.01.2024 passed by this Court in

W.P. No. 1807 of 2024.

13. Taking into consideration the aforesaid facts and

circumstances, this writ petition is disposed of by setting

aside the impugned notice dated 06.02.2024 issued by

respondent No.2 with a direction to the respondent No.2

to consider the detailed explanation dated 07.01.2024

submitted by the petitioner in response to the show cause

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notice dated 06.12.2023 issued to the petitioner by the 2nd

respondent herein, within a period of one week, from the

date of receipt of a copy of this order, in accordance with

law, duly considering the law laid down in the various

judgments (referred to and extracted above) and pass

appropriate orders, within a period of two weeks,

thereafter, duly communicating the decision to the

petitioner subject to the following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in C.C. No. 585 of 2021 on the file of VI Addl. Chief Metropolitan Magistrate, Hyderabad stating that he will not leave India during pendency of the said cases 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;

iii) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the trial Court in the above crimes ; and

iv) 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.

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However, in the circumstances of the case, there shall be

no order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the

writ petition shall also stand closed.

__________________________ MRS JUSTICE SUREPALLI NANDA

Date: 22nd February, 2024

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