Telangana High Court

Enturi Sri Babu vs The Regional Passport Officer on 29 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

      HON'BLE MRS JUSTICE SUREPALLI NANDA

           WRIT PETITION No.17140 of 2021

ORDER:

Heard Mr. Surendra Desai, learned counsel

appearing on behalf of petitioner and also heard Ms.

Vishala, learned Counsel for representing Dy. Solicitor

General of India, appearing on behalf of sole

respondent.

2. The petitioner approached the Court seeking

prayer as under:

"to pass an order or writ in the nature of Mandamus, duly declaring the demand of the respondent in Letter Number Hyd/30/Pol/PIC/214/2021, dated 08.07.2021, to surrender the pass port of the petitioner vide Number U8700626 dated 01.03.2021 as, arbitrary and against the principles of natural justice in the light of orders in CRLP o. 3810 of 2021, and consequently, set aside the Letter Number Hyd/30/Pol/PIC/214/2021, dated 08.07.2021in the interest of justice and to pass such other and further orders as the Honourable Court may deem fit and proper in the circumstances of the case."

3. Ms.A.Vishala, learned Counsel representing Dy.

Solicitor General of India, appearing on behalf of

respondent places on record, the Written Instructions

and in particular paragraph Nos.4 to 9 reads as under:

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4. On 05-03-2021, the police report received as Adverse with remarks "He is involved in Cr. No. 68/2019 U/s 420 IPC of Kothagudem 1 Town PS and the case is pending trial (PT) in the Court of Honourable 1st Addl. JFCM at Kothagudem".

5. On verifying the online application of the petitioner, it is found that the petitioner has not mentioned any details regarding his ongoing court case at JFCM Kothagudem. He has suppressed the information in his passport application.

6. Based on the adverse report and since he has suppressed the information, a Show Cause Notice vide HYD/30/POL/PIC/214/2021 dated 07-04- 2021 was issued calling for explanation with supporting documents within 21 days failing which action will be initiated under Section 10 (3) (e) of the Passports Act, 1967. (Annx-

1).

7. Received reply from the Petitioner through email dated 24-05-2021, stating that he was falsely implication in the year 2016 and that he has already obtained interim stay order on all further proceedings, including the

of 2020 on the File of 1 Additional Judicial First Class Magistrate, Kothagudem,

of 2021 in Crl P. No. 3810 of 2021 dated 30- 04-2021. (Annx-II).

8. Although the Hon'ble High Court has granted interim stay on further proceedings, since the criminal proceedings are still pending against the Passport holder, a letter vide HYD/3O/POL/PIC/214/2021 dated 08.07.2021 has been sent to the petitioner directing him to surrender his Passport No. U8700626 dated 01.03.2021 to this office within 21 days. It is also mentioned in the

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letter that this office will have no objection to restore passport facilities to him on production of acquittal / quash orders or permission to travel abroad from the court where the criminal proceedings are pending against him. (Annx-III).

9. This letter vide HYD/30/POL/PIC/214/ 2021, DATED 08.07.2021 issued to the petitioner for surrender of his passport is justified as he has suppressed the information in his passport application when the criminal proceedings are still pending.

PERUSED THE RECORD.

4. The respondent issued show cause notice dated

05.04.2021 vide No.HYD/30/POL/PIC/214/2021 to the

petitioner, and the same reads as under:

"This refers to your passport bearing number U8700626, dated 01/03/2021 obtained vide file No.HYA073293136321, dated 27.02.2021. It is now brought to our notice that your are involved in criminal case vide Cr.No.68/2019 u/s 420 IPC of Kothagudem I Town Police Station which is pending trial at Hon'ble Additional JFCM Court, Kothagudem. Also, you have suppressed the said information for your passport application form which is an offence under section 12(b) of the Passports Act, 1967.

In view of the above, you are directed to surrender your original passport bearing number U8700626 and furnish your explanation with

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supporting documents within 21 days failing which necessary action will be initiated under section 10(3)(e) of the Passports Act, 1967."

5. The respondent issued impugned order dated

08.07.2021 vide No.HYD/30/POL/PIC/214/2021 to the

petitioner, and the same reads as under:

"Please refer to your email dated 24.05.2021 in response to this office notice dated 23.04.2021.

2. After careful examination of your case based on your explanation, stay orders granted by the Hon'ble High Court vide IA No.2 of 2021 in Crl.P.No.3810 of 2021, dated 30.04.2021 and relevant rules of Passport Act, 1967, it is clearly established that you have suppressed the information about criminal proceedings pending against you in the relevant column of passport application form. It is further understood that the criminal proceedings are still pending against you.

3. In view of the above, you are hereby directed to surrender your passport bearing No.U8700626, dated 01.03.2021 to this office within 21 days. However, this office will have no objection to restore passport facilities to you on production of acquittal/quash order or permission to travel abroad from the court where the criminal proceedings pending against your."

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6. It is the specific case of the petitioner that, in

pursuance to the show cause Notice dated 05.04.2021 issued

by the respondent calling upon the petitioner to surrender his

original passport bearing No.U8700626 and to furnish

explanation with supporting documents within (21) days, the

petitioner has submitted his detailed reply dated 08.04.2021

to the Notice dated 05-04-2021 clearly submitting that by

virtue of the orders passed in CRLP No.3810 of 2021, wherein

the petitioner obtained interim stay in favour of the petitioner

pertaining to proceedings including appearance of the

petitioner in C.C. No.293 of 2020 on the file of I Additional

Judicial First Class Magistrate, Kothagudem, Bhadadri

Kothagudem District vide I.A.No.2 of 2021 in Crl.P.No.3810 of

2021 dated 30.04.2021 and that the petitioner had been

falsely implicated in the said case and that the petitioner had

not deliberately suppressed any information. The petitioner

being a Doctor had no intention to suppress any details

regarding pendency of criminal cases against him and there is

no malafide intention on petitioner's part to suppress the

same and the petitioner requested the Passport Officer, vide

his reply dated 08.04.2021 to drop proceedings initiated in

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pursuance to the show cause Notice dated 05.04.2021. To

the shock of the petitioner, petitioner received the impugned

letter dated 08.07.2021 passed by the respondent herein

informing the petitioner that the explanation of the petitioner

dated 08.04.2021 in response to the Notice dated 05.04.2021

issued by the Regional Passport Officer, Secunderabad had

been considered and the case of the petitioner has been

examined but however petitioner was directed to surrender

the passport within (21) days on the ground that the

petitioner suppressed information about pendency of criminal

proceedings pending against the petitioner herein.

7. It is evident on perusal of the impugned order

dated 08.07.2021 that on the ground of suppression of

information about pendency of criminal proceedings

pending against the petitioner, the petitioner had been

called upon to surrender the petitioner's passport.

8. A bare perusal of the order impugned dated

08.07.2021 issued to the petitioner clearly indicates

that there is no discussion pertaining to the explanation

dated 08.04.2021 submitted by the petitioner in

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response to the show cause notice dated 05.04.2021

issued to the petitioner by the respondent herein and it

had been held unilaterally that it had been established

that petitioner had suppressed the information about

criminal proceedings pending against the petitioner. A

bare perusal of the show clause notice dated

07.04.2021 clearly indicates that at the threshold of

show cause notice itself it had been concluded that

petitioner had suppressed information in petitioner's

passport application form.

8A. The Apex Court in the Judgment reported in

(2010) 13 SCC 427 in Oryx Fisheries Pvt., Ltd., Vs.

Union of India & Others, in its Head note duly referring

to the relevant paras of the said judgment, observed as

under :

"It is well settled that a quasi-judicial authority, while acting in exercise of its Statutory power must act fairly and must act with an open mind while initiating a show- cause proceeding. A show-cause proceeding is meant to give the person proceeded against a reasonable opportunity of making his objection against the proposed charges indicated in the notice. (Para 24).

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At the stage of show-cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. At that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in the present case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony. (Para 27) Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against.

In the present case, from the show-cause notice it is clear that the third respondent, Deputy Director, MPEDA HAS demonstrated a totally closed mind at the stage of show-cause notice itself. Such a closed mind is inconsistent with the scheme of Rule 43 of the MPEDA Rules. (Para 29).

It is true that the show-cause notice cannot be read hyper technically and it is well settled that it is to

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be read reasonably. But, while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi- judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. (para 31) Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when the authority has the power to take a punitive step against the person after giving him a show- cause notice. (para 32) The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it. (para 33)"

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9. A bare perusal of the order impugned dated

08.07.2021 issued by the respondent to the petitioner

herein indicates that on two grounds the petitioner was

directed to surrender petitioner's passport bearing

No.U8700626, dated 01.03.2021 as per the orders

impugned dated 08.07.2021.

10. Firstly, that it had been clearly established that

petitioner suppressed the information about criminal

proceedings pending against the petitioner and

secondly that criminal proceedings are still pending

against the petitioner. In so far as the 1st ground is

concerned, this Court opines that the explanation of the

petitioner dated 08.04.2021 in response to show cause

notice dated 05.04.2021 had not been considered at all

and the respondent prejudged the issue against the

petitioner at the threshold of show cause notice itself.

11. In so far as criminal proceedings still being

pending against the petitioner as observed at para (1)

of the impugned proceedings dated 08.07.2021 of the

respondent is concerned, this Court opines that

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pendency of criminal proceedings against the petitioner

cannot be a ground to to seek surrender of passport.

12. 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."

13. 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

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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.

14. 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."

15. 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

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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.

16. 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

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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

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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.

17. In Vangala Kasturi Rangacharyulu Vs. Central

Bureau of Investigation reported in 2020 Crl.L.J. (SC)

572, the Apex Court 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

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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 renew the

passport of the applicant without raising the objection relating

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

18. 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),

1. The Apex Court in the Judgment in Oryx Fisheries Pvt., Ltd., Vs. Union of India & Others reported in (2010) 13 SCC 427.

2. The Apex Court in Sumit Mehta v State of NCT of Delhi reported in 2013 (15) SCC page 570.

3. The Apex Court in Maneka Gandhi vs Union of India reported in 1978 (1) SCC 248

4. The Division Bench of the Apex Court in its judgment dated 09.04.2019 in Satish Chandra Verma v Union of India (UOI) and others reported in 2019 SCC online SC 2048.

5. 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.

6. The judgment dated 08.04.2022 of the Andhra Pradesh High Court in Ganni Bhaskara Rao Vs. Union of India and another reported in 2023 (4) ALT 406 (AP).

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7. The Apex Court in Vangala Kasturi Rangacharyulu Vs. Central Bureau of Investigation reported in 2020 Crl.L.J. (SC) 572

the writ petition is allowed and the impugned

proceedings of the respondent dated 08.07.2021 vide

HYD/30/POI/PIC/214/2021 is set aside. The

respondent is directed to re-consider the explanation

dated 08.04.2021 furnished by the petitioner to the

show cause notice dated 07.04.2021 issued by the

respondent herein in accordance to law, duly

considering the orders dated 30.04.2021 passed in

Crl.P.No.3810 of 2021 in petitioners favour, and duly

taking into consideration the law laid down by the Apex