Telangana High Court
Maheswaram Sandip Chandra, vs The Union Of India, on 28 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.4948 OF 2024
ORDER:
Heard Mrs.M.Raja Laxmi, learned counsel appearing
on behalf of the petitioner and Mr. K.Mohan, learned
counsel appearing on behalf of the respondents.
2. The petitioner approached this Court with the
following prayer:
" ...to issue a writ order or direction, more particularly
one in the nature of writ of mandamus by declaring
the impugned letter dated 02.02.2024 bearing
No.HYD/30/POL/PIC/112/2024 issued by the 2nd
respondent through gmail on 13.02.2024 to impound
petitioner's passport bearing No W3067547, as being
illegal, arbitrary violative of principles of natural
justice, violative of Article 14, 21 of the Constitution
of India and consequently direct the Respondent No.2
to set aside the impugned letters dated 02.02.2024
bearing No. HYD/30/POL/PIC/112/2024, letter dated
30.07.2022 without impounding the passport and to
pass..."
PERUSED THE RECORD.
3. It is the specific case of the petitioner that in response to
the show cause notice dated 30.07.2022 issued by the 2nd
respondent to the petitioner, the petitioner has submitted an
explanation dated 28.01.2024, but however, the Passport
Authority after considering the same directed the petitioner vide
its letter dated 02.02.2024, to surrender the petitioner's
passport dated 21.07.2022, within 15 days. But however, the
said orders stipulated that the passport facility would be restored
to the petitioner on production of acquittal order or permission to
travel abroad from the trial Court where the criminal proceedings
are pending against the petitioner. The petitioner initially had
received a notice dated 30.07.2022 calling upon the petitioner to
submit petitioner's explanation to the notice dated 30.07.2022
stating that the petitioner herein is involved in Crime No.161 of
2018 under Sections 147, 148, 341, 307, 506 read with 149 UPC
of P.S. Chivvemla, case was in PT vide SC No.32 of 2020 and
Crime No.305 of 2018 under Sections 3(1)(r)(s) of SC/ST POA
Act, 2015 of P.S.Suryapet-II Town, PT Vide S.C.No.416 of 2019
at ASJ Court, Suryapet, but however the petitioner had
suppressed petitioner's involvement in the said crime and
therefore, the petitioner was called upon therein through the said
Show Cause notice to give a suitable explanation with regard to
suppression of the said material information. The petitioner had
submitted a detailed explanation dated 28.01.2024 to the notice
dated 30.07.2022 issued to the petitioner however the 2nd
respondent without considering the same had issued the
impugned letter dated 02.02.2024. Aggrieved by the same, the
petitioner filed the present writ petition.
4. Learned counsel appearing on behalf of the petitioner
submits that the respondents may be directed to reconsider the
explanation of the petitioner submitted vide petitioner's
explanation dated 28.01.2024 in response to the notice dated
30.07.2022, issued by the 2nd respondent.
5. This Court opines that pendency of the criminal case
against an applicant seeking passport facilities cannot be
a ground to deny issuance of Passport facilities to the said
applicant or can be a reason to impound a passport. The
explanation furnished by the petitioner in so far as it
relates to suppression can be duly considered by the 2nd
respondent in accordance to law.
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:
"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."
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
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. It is also relevant to note that the Apex Court reported in
2020 Crl.L.J. (SC) 572 in Vangala Kasturi Rangacharyulu
case 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.
12. Taking into consideration the aforesaid facts and
circumstances of the case and the law laid down by the
Apex Court and other High Courts in the various
Judgments (referred to and extracted above), the
Passport Authority-2nd respondent herein, is directed to
reconsider the explanation dated 28.01.2024, furnished
by the petitioner in response to the show cause notice
dated 30.07.2022 issued to the petitioner, by the 2nd
respondent, in accordance to law, duly taking into
consideration the law laid down by the Apex Court and
other High Courts in the various judgments (referred to
and extracted above) and communicate the decision to
the petitioner.
With the above said observations, the writ petition is
disposed of. 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.
_________________
SUREPALLI NANDA,J
Date: 28.02.2024
Yvkr
