Telangana High Court

Pujari Sreedhar vs The Union Of India, on 9 January, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA
              WRIT PETITION No.569 OF 2024
ORDER:

Heard M/s. Srilekha Pujari, learned counsel for the

petitioner and Sri Gadi Praveen Kumar, learned Deputy

Solicitor General of India appearing for respondents.

2. The petitioner approached this Court seeking the

relief as under:

"to issue an appropriate Writ, direction or order more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No.2 in not renewing the passport of the petitioner after submission of application as per the provisions of his Passport bearing No.H7481619 Vide Application Form Vide/file Number HY75C5083229122 dated 23.11.2022 as illegal, arbitrary, unconstitutional violative of Article 21 of the Constitution of India apart from being in violation of principles of natural justice and contrary to the provisions of Passport Act and Rules made there under and consequently direct the Respondent No.2 to renew and release petitioner Passport vide his Passport bearing No.H7481619 Application Form Vide/file Number HY75C 5083229122 dated 23.11.2022 and pass such other order or orders as the Hon'ble Court may deem fit and proper in the circumstances of the case."

3. It is the specific case of the petitioner that in response to

the Lr.Ref.No.SCN/313782703/22, dated 23.11.2022 issued by

the Regional Passport Office, Hyderabad to the petitioner herein,

the petitioner had submitted explanation dated 12.12.2022. But,

however, the respondents have not considered the request of the

petitioner for renewing the passport of the petitioner after

submission of application as per the provisions of the Passport

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Act, 1967 with respect to the passport bearing No.H7481619

vide application form vide file No.HY75C5083229122, dated

23.11.2022 till as on date, on the ground of pendency of criminal

case registered against the petitioner. Aggrieved by the same,

the petitioner approached this Court by filing the present writ

petition.

4. PERUSED THE RECORD.

This Court opines that pendency of a criminal case against

the petitioner cannot be the ground for denying the renewal of

passport to the petitioner by respondent No.2 and the same 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.

5. 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

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

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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 renew

the passport of the applicant without raising the objection

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

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,

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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 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

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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, 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

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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.

In view of the above, this Court opines that mere

pendency of C.C.No.479 of 2019 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

respondent No.2 for consideration of the application of the

petitioner for renewal of passport. Thus, on the ground of

pendency of the above criminal case, passport cannot be denied

to the petitioner.

11. Taking into consideration the facts and

circumstances of the case and also the submission of both

the learned counsel on record, the Writ petition is

disposed of at the admission stage, directing the

petitioner herein to file a fresh application before the

authority within a period of one(01) week from the date

of receipt of a copy of this order thereafter the respondent

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No.2 herein on receipt of the said application shall

consider the same in accordance to law, within a period of

one(01) week 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 C.C.No.479 of 2019,

subject to the following conditions:

i) The petitioner herein shall submit an undertaking

along with an affidavit in C.C.No.479 of 2019,

pending on the file of II Additional Judicial Magistrate

of First Class, Gadwal 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 No.2

Passport Officer for renewal of his passport;

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iv) The Respondent No.2-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 petitioner for renewal

of his passport in accordance with law, within two

(03) weeks from the date of said application;

v) On renewal of the Passport, the petitioner herein

shall deposit the original renewed Passport before

the trial Court in C.C.No.479 of 2019; and

vi) However, liberty is granted to the petitioner herein to

file an application before the trial Court seeking