Nerallapally Bhanuprakash Reddy, vs The Union Of India,
2024 Latest Caselaw 762 Tel

Telangana High Court

Nerallapally Bhanuprakash Reddy, vs The Union Of India, on 23 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA

            WRIT PETITION No.4844 OF 2024

ORDER:

Heard Mr. T.S. Anirudh Reddy, learned counsel for

the petitioner and Mrs.Rajyalaxmi, learned Counsel

representing Dy. Solicitor General of India, appearing

on behalf of respondent Nos.1 and 2.

2. The petitioner has approached the Court seeking

the following relief:

"to issue a Writ, order or direction more particularly one in the nature of writ of Mandamus to set-aside the action of respondents in issuing letter in Application No. HY2076078316323 dated 09.01.2024 in refusing renewal of passport on the ground of pending criminal proceedings as being illegal, biased, arbitrary and contrary to the provisions of the Passport Act 1967 and in violation of Article 14 & 21 of the Constitution of India and consequently direct the Respondent No. 2 to renew the passport of the petitioner and pass such other Order or Orders as this Hon'ble Court deems fit and proper in facts and circumstances of the case."

PERUSED THE RECORD.

3. The case of the petitioner in brief is that, the petitioner's

passport expired on 09.11.2023 and petitioner had applied for

renewal of passport vide online application bearing

No.HY207607316323 dated 09.12.2023 to the 2nd respondent

- Regional Passport Officer, Secunderabad, along with all the

requisite documents and fees prescribed, with a request to

renew the passport. On 09.01.2024 the respondent/passport

authority issued Notice vide letter reference

No.OBJ.316737941/24, dated 09.01.2024 and called upon the

petitioner to furnish proof of clearance of the case along with

explanation/clarification by visiting in person the Enquiry

officer at the Regional Passport office, Hyderabad.

4. The petitioner herein filed the present writ petition

challenging the above said proceedings issued by the 2nd

respondent vide reference No. OBJ. 316737941/24, dated

09.01.2024 seeking to furnish proof of clearance of the case

registered against the petitioner.

5. The learned counsel for the petitioner further contends

that, refusing passport services and asking the petitioner to

submit proof of clearance of the case registered against the

petitioner for renewal of the petitioner's passport on account

of pendency of the criminal case vide C.C. No.271 of 2019 on

the file of Judicial First Class Magistrate, Medak at Sangareddy

District is totally uncalled for and the said action of the

respondents is contrary to the procedure laid down under the

Passports Act, 1967.

6. The learned Standing Counsel appearing on behalf of

respondent No.2/passport authority submits that the petitioner

instead of furnishing his explanation to the Notice vide

reference No. OBJ.316737941/24, dated 09.01.2024, the

petitioner approached this Court by way of filing the present

Writ petition.

DISCUSSION AND CONCLUSION:

7. The order impugned issued by the respondent No.2-

Regional Passport Officer to the petitioner herein vide Notice

reference No. OBJ.316737941/24, dated 09.01.2024 and the

contents of the said letter/notice reads as under:

"On processing of the Application form, the following shortcomings came to notice:-

A criminal case is pending against you as per Police Verification report "The Applicant involved in or no 209/2018 u/s 498-A IPC of Sanga Reddy Rural PS P.T. wide C.C.no 271/2019."

In view of the above, you are requested to furnish proof of clearance of the case along with explanation/clarification by visiting in person at the Enquiry officer at Regional

Passport Office, Hyderabad within 30 days with online enquiry appointment or Walk in on Thursday (working day) between 9.30 AM to 12.30 PM.

The originals of such documents and photocopies thereof need to be carried along with application form while visiting Passport Office."

8. A bare perusal of the order impugned, dated 09.01.2024

clearly indicates that the respondent called upon the petitioner

to furnish proof of clearance of the case registered against the

petitioner along with explanation. This Court opines that the

2nd respondent herein cannot insist the petitioner to furnish

proof of clearance of the criminal case pending against the

petitioner vide C.C. No.271 of 2019 pending on the file of

Judicial First Class Magistrate, Medak at Sangareddy District

for considering renewal of petitioner's passport application

bearing No.HY207607316323 dated 09.12.2023.

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

refuse the renewal of passport of the petitioners on the ground

of the pendency of the aforesaid criminal case against the

petitioners 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.

10. 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 passport of

the applicant without raising the objection relating to

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

11. 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."

12. The Apex Court in Maneka 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, 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.

13. 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."

14. 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.

15. 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.

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.

16. 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

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

criminal case registered against the petitioner, renewal of

passport cannot be denied to the petitioner.

17. In view of the above facts and circumstances of

the case and also the submissions of learned Counsel

appearing on behalf of petitioner and duly taking into

consideration the view taken by the High Courts and

Supreme Court in all the Judgments (referred to and

extracted above), the writ petition is disposed of at the

admission stage, the petitioner herein is directed to

submit explanation to the notice dated 09.01.2024

issued to the petitioner within two (02) weeks from the

date of receipt of the copy of the order and the 2nd

respondent herein on receipt of the said explanation

from the petitioner is directed to consider the said

explanation and also petitioner's passport application

seeking renewal of passport services vide application

dated 19.12.2023 submitted by the petitioner, in

accordance to law duly taking into consideration the law

and view taken by the Apex Court and other High Courts

in the various judgments referred to and extracted

above and pass appropriate orders on petitioner's

application dated 19.12.2023 seeking renewal of

petitioner's passport without reference to the pendency

of the proceedings in CC.No.271 of 2019, within a period

of three (03) weeks thereafter, subject to the following

conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in CC.No.271 of 2019, 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.;

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 renewal of his passport;

iv) The Respondent-Passport Officer shall consider the said application dated 19.12.2023 seeking renewal of petitioner's passport in the light of the observations made by this Court herein as well as the contents of the undertaking given by the petitioner for renewal of his passport in accordance with law, duly considering petitioner's explanation

to be submitted in response to the notice dated 09.01.2024 issued by the 2nd respondent and also the undertaking;

v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the trial Court in CC.No.271 of 2019; and

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.

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: 23-02-2024 ksl.