Chinthapandu Naveen Kumar Teenmar ... vs The Union Of India
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Telangana High Court

Chinthapandu Naveen Kumar Teenmar ... vs The Union Of India on 26 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA

              WRIT PETITION No.3683 OF 2024


ORDER:

Heard Mr.S.Sharath Kumar, learned counsel for

the petitioner and Sri Gadi Praveen Kumar, learned

Deputy Solicitor general of India appearing on behalf of

the respondents.

2. The petitioner approached this Court seeking the

relief as under:

"To issue an appropriate Writ, Order or direction, more particularly one in the nature of writ of certiorari calling for the records pertaining to impugned order passed by the 2nd Respondent, Regional Passport authority No.HYG066199422924, dated 31.01.2024 and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case".

3. The case of the petitioner in brief as per the

averments made by the petitioner in the affidavit filed

by the petitioner in support of the present writ petition

is:-

The petitioner herein had applied for issuance of

passport vide online application bearing No.

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HYG066199422924 dated 29.01.2024 to the 2nd respondent -

Regional Passport Officer, Secunderabad, along with all the

requisite documents and fees prescribed, with a request to

issue the passport. The same was not considered by the

respondents on the ground that, the petitioner is accused in

criminal cases vide S.C.No.148 of 2022 on the file of SC/ST

Court, Nalgonda. Hence, the present Writ Petition.

4. It is contended by the learned counsel appearing on

behalf of the petitioner that petitioner herein is accused in

S.C.No.148 of 2022 in Cr.No.24 of 2021 under Section 504,

506 of IPC and Section 3(1)(r)(s), SC, ST POA Act of

Addagudur police Station pending on the file of SC/ST Court,

Nalgonda. Therefore, the petitioner sought to issue necessary

directions to the respondents for consideration of petitioner's

application for issuance of passport. In the present writ

petition, the petitioner challenged the impugned proceedings

dated 30.01.2024 issued by the respondent No.2 herein.

5. 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 cases against the petitioner and the said action of the

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respondents is contrary to the procedure laid down under the

Passports Act, 1967.

6. It is specifically averred in the affidavit filed by

the petitioner in support of the present writ petition at

para No.6 as under:

"I humbly submit that I have an infant daughter by name Ch.Sakpal Patil who is born with certain deficiencies and she has been suffering from "ACHONDROPLASIA & HYDROCEPHALUS" since birth. She has undergone treatment at Suraksha Children Hospital, Tarnaka, Secunderabad. She has been advised treatment abroad either at US or UK. I intend to take my daughter for better treatment in US or UK depending upon the facilities available there. For the said purpose I need passport. Hitherto prohibiting on issuance of passport to people facing criminal cases has been relaxed by the issuance of GSR570 (E) which stipulates the grant of a passport for a limited period on the strength of the permission granted by the competent court."

7. Learned counsel appearing on behalf of the petitioner

submits that it is important that the petitioner's daughter

should be treated for her ailment in US or UK and it is equally

essential that the father of the petitioner has to accompany

the daughter for the said treatment.

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8. Learned counsel appearing on behalf of respondent

Nos.1 and 2 placing reliance to the averments made in the

counter affidavit at para No.9 contends that there are 62

cases pending against the petitioner and charge sheet is filed

in 16 cases and if the passport is granted to the petitioner,

there is every chance of the petitioner avoiding the trial in the

pending cases.

9. Learned counsel for the petitioner further submits that

the petitioner has no intention to avoid the investigation in

the pending cases in order to avoid the court proceedings. It

is only about the treatment of the petitioner's child that it is

important that the petitioner passport is issued to the

petitioner and the application of the petitioner seeking

reissuance of the passport needs to be considered and further

the learned counsel submits that the petitioner applied for

passport in fresh category on 29.01.2024 and no orders had

been passed on the said application as on date.

PERUSED THE RECORD.

10. This court opines that pendency of criminal case against

the petitioner cannot be a ground to deny issuance of

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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.

11. 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 cases 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

Vangala Kasturi Rangacharyulu v. Central Bureau of

Investigation 1.

12. 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

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

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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.

13. 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."

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14. 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, 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.

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15. 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."

16. 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.

17. In the judgment dated 08.04.2022 of the Andhra

Pradesh High Court reported in 2023 (4) ALT 406 (AP)

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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

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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."

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

pendency of criminal cases is not a ground to decline issuance

of passport. Further, the petitioner is ready to co-operate

with the trial Court in concluding trial. Therefore, the

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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.

19. Taking into consideration the above facts and

circumstances of the case and duly considering the

averments made at para No.6 of the affidavit filed by

the petitioner in support of the present writ petition

and also the submissions of the learned counsel

representing respondent No.2 herein, the writ petition

is allowed, the order impugned HYG066199422924

dated 30.01.2024 issued by the 2nd respondent is set

aside, the petitioner is directed to give all the details in

the form of affidavit pertaining to all the cases

registered and pending against the petitioner to the

respondent No.2 herein within a period of (01) one

week from the date of receipt of copy of this order duly

referring to the details of all the offences alleged

against the petitioner. The respondent No.2 herein

upon receipt of the same is directed to consider the

application bearing No. HYG066199422924, dated

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29.01.2024 submitted by the petitioner duly taking into

consideration the purpose of visit as explained by the

petitioner at para No.6 of the affidavit filed by the

petitioner in support of the present writ petition and

also 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 S.C.No.148 of 2022, subject to the

following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in S.C.No.148 of 2022, pending on the file of SC/ST Court, Nalgonda, stating that he will not leave India during pendency of the said S.C. without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said S.C.;

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 issuance of his passport;

iv) The Respondent-Passport Officer shall consider the said application in the light of the

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observations made by this Court herein as well as the contents of the undertaking given by the petitioner for issuance of passport in accordance with law, within three (03) weeks from the date of said application;

v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in S.C.No.148 of 2022; 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:26.02.2024 dgr