Varun Kumar Nagelli vs The Union Of India
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Telangana High Court

Varun Kumar Nagelli vs The Union Of India on 28 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA

              WRIT PETITION No.3152 OF 2024

ORDER:

Heard Mr. C.Sharan Reddy, learned counsel

appearing on behalf of the petitioner and learned counsel

representing the learned Deputy Solicitor General of

India, appearing on behalf of respondent Nos.1 to 3.

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

herein made an application to the 2nd respondent - Regional

Passport Officer, Secunderabad vide file No.23-2004936546 for

renewal of passport bearing No.L6595401 along with all the

requisite documents and fees prescribed, with a request to

renew the passport. The same was not considered by the

respondents on the ground that the petitioner was involved in

criminal case vide C.C.No.10628 of 2020 on the file of the XVII

Additional Chief Metropolitan Magistrate, Hyderabad. Aggrieved

by the same, the petitioner filed 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 criminal

case vide C.C.No.10628 of 2020 pending on the file of XVII 2 SN, J W.P. No.3152_2024

Additional Chief Metropolitan Magistrate, Hyderabad vide FIR

No.105 of 2020 dated 21.03.2020 of P.S. Musheerabad,

Hyderabad. Therefore, the petitioner sought to issue necessary

directions to the respondents for consideration of the petitioner's

application for renewal of passport.

4. 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 case against the petitioner and the said action of the

respondents is contrary to the procedure laid down under the

Passports Act, 1967.

5. The learned counsel representing Dy. Solicitor General of

India, brings on record the Written instructions vide

No.HYD/843/28(53)/POL/LC/2024 US8075120690324, dated

20.02.2024 and in particular paragraph Nos.2, 6 and 7 of the

said Written instructions reads as under:

"2. The file was initiated with Pre Police Verification and received adverse police report from the Chivvemla PS, that the petitioner is involved in Cr.No.105 of 2020 U/s 354(C), 420, 504, 509 of Mushirabad PS. Present case was in 3 SN, J W.P. No.3152_2024

pending trial vide C.C.No.10628 of 2020 at XVII ACMM Court Hyderabad City.

6. It is to mention that the present Passport of the Petitioner bearing No.L6595401 has expired its validity on 19-12-2023, the Petitioner has to approach the Consulate General of India at Houston office for issue of Emergency Certificate under section 4(2)(a) of the Passports Act, 1967 to travel to India and can apply from here for his re-issue of Passport alongwith permission from the court where the case is pending.

7. This office can reconsider his application, subject to submission of acquittal order from the case or permission to travel abroad from the same Hon'ble Court where the criminal case is still pending. In this regard, the Ministry of External Affairs Gazette Notification vide GSR-570(E) dated 25-08-1993."

PERUSED THE RECORD.

6. This court opines that pendency of criminal case

against the petitioner cannot be a ground to deny

renewal/issuance of 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.

4 SN, J W.P. No.3152_2024

7. 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 case 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 2020

Crl.L.J.(SC) 572 Vangala Kasturi Rangacharyulu v. Central

Bureau of Investigation.

8. 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 5 SN, J W.P. No.3152_2024

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.

9. 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."

10. 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, 6 SN, J W.P. No.3152_2024

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.

11. The Division Bench of the Apex Court in its judgment

dated 09.04.2019 reported in 2019 SCC online SC 2048 in

7 SN, J W.P. No.3152_2024

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."

12. 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.

13. 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:

8 SN, J W.P. No.3152_2024

"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.

9 SN, J W.P. No.3152_2024

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."

14. 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 issuance of 10 SN, J W.P. No.3152_2024

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

criminal case, the request of the petitioner for renewal of

passport cannot be denied to the petitioner.

15. Written instructions filed by the learned counsel

appearing on behalf of the 2nd respondent and in

particular, relevant paras 3, 6 and 7, read as under:

"3. The father of the petitioner approached at RPO Office Hyderabad on 15.02.2024 with a request letter from the petitioner addressed to this office stating that he received an email from the Consulate General of India Houston office stating that police verification is not cleared. The father of the petitioner was informed about the pending case against the petitioner.

6. It is to mention that the present Passport of the petitioner bearing No.L6595401 has expired its validity on 19.12.2023, the petitioner has to approach the Consulate General of India at Houston office for issue of Emergency Certificate under Section 4(2)(a) of the Passports Act, 1967 to travel to India and can apply from here for his re- issue of Passport along with permission from the court where the case is pending.

7. This office can reconsider his application, subject to submission of acquittal order from the case or permission to travel abroad from the same Hon'ble Court where the criminal case is still pending. In this regard, the Ministry of 11 SN, J W.P. No.3152_2024

External Affairs Gazette Notification vide GSR-570(E) dated 25.08.1993."

16. Taking into consideration the aforesaid facts and

circumstances of the case and in view of the aforesaid

discussion and duly considering the written instructions

filed by the 2nd respondent in the present case (referred

to and extracted above), this writ petition is disposed of,

directing the 2nd respondent and the 3rd respondent to

consider the application No.23-2004936546, dated

13.12.2023 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 criminal

case vide C.C.No.10628 of 2020 pending on the file of

XVII Additional Chief Metropolitan Magistrate, Hyderabad

vide FIR No.105 of 2020 dated 21.03.2020 of

P.S.Musheerabad, Hyderabad, subject to the following

conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in criminal case vide C.C.No.10628 of 2020 pending on the file of 12 SN, J W.P. No.3152_2024

XVII Additional Chief Metropolitan Magistrate, Hyderabad vide FIR No.105 of 2020 dated 21.03.2020 of P.S.Musheerabad, Hyderabad, stating that he will not leave India during pendency of the said C.C. without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said C.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 their passport;

iv) The Respondent-Passport Officer shall consider the said application in the light of the observations made by this Court herein as well as the contents of the undertaking given by the petitioners for renewal of passport in accordance with law, within two (02) 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 criminal case vide C.C.No.10628 of 2020 pending on the file of XVII Additional Chief Metropolitan Magistrate, Hyderabad vide FIR No.105 of 2020 dated 21.03.2020 of P.S.Musheerabad, Hyderabad; and

vi) However, liberty is granted to the petitioner herein to file an application before the trial Court seeking 13 SN, J W.P. No.3152_2024

permission to travel aboard and it is for the trial Court to consider the same in accordance with law.

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

writ petition shall also stand closed. However, there shall be no

order as to costs.

__________________________ MRS JUSTICE SUREPALLI NANDA

Date: 28th February, 2024 ns