Chenchu Madhusudhan Reddy vs Union Of India,

Telangana High Court

Chenchu Madhusudhan Reddy vs Union Of India, on 10 January, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA


               WRIT PETITION No.649 OF 2024
ORDER:

Heard Mr. D.Sudharshan, learned counsel for the

petitioner and Mr. G.Venkateswarlu, learned Standing

Counsel for Central Government appearing on behalf of

respondent Nos.1 and 2.

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

herein has applied for renewal of passport bearing No.J7163689.

He has submitted online application bearing

No.HY75C5101454522 dated 27.12.2022 with respondent No.2

along with all the requisite documents and fees prescribed, with

a request to renew the said passport. The same was not

considered by the respondent on the ground that, the petitioner

is an accused in criminal cases vide C.C. No.385 of 2015 and

CC.No.177 of 2017 under Section 304(A) of IPC on the file of

Judicial First Class Magistrate at Vikarabad District. Hence, 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 C.C.

No.385 of 2015 in Cr.No.285 of 2014 and CC.No.177 of 2017 in

Cr.No.233 of 2017 under Section 304(A) of IPC on the file of

Judicial First Class Magistrate at Vikarabad and the said cases 2 SN, J W.P. No.649 of 2024

are of Medical Negligence registered by the Police and filed

Charge Sheets.

4. The learned Standing Counsel for Central Government,

appearing on behalf of respondents, brings to the notice of this

Court the written instructions, dated 10.01.2024 and paragraph

nos.11 and 12 of the said Written Instructions read as under:

11. Recent order in W.P. No. 24269 of 2023 passed by Hon'ble High Court of Karnataka in this regard is mentioned for kind perusal of the Court which states" - "Every issuance, re-

issuance or renewal would have to meet the requirements or pass through the rigours of Section 6, the Petitioner can approach the court concerned, seeking issuance of a short validity passport and the court concerned should consider such application strictly in consonance with the Passports Act, GSR-570 (E) dated 25.08.1993 and its requirements."

12. This office can reconsider the fresh issue application of the Petitioner, if he submits acquittal order from the case or obtain 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 refers refers."

PERUSED THE RECORD.

5. This Court under similar circumstances had been passing

orders directing the respondent-Regional Passport Authority to

consider the application of the petitioner seeking renewal of 3 SN, J W.P. No.649 of 2024

passport. The Respondent 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

respondent 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.

6. 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 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

1 . 2020 Crl.L.J. (SC) 572 4 SN, J W.P. No.649 of 2024

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.

7. 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."

8. 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 5 SN, J W.P. No.649 of 2024

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.

9. 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."

10. 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 6 SN, J W.P. No.649 of 2024

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.

11. 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 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 7 SN, J W.P. No.649 of 2024

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.

12. 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 respondent 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.

13. In view of the aforesaid discussion, this writ petition

is disposed of at the admission stage, directing THE

respondentS to consider the application bearing

No.HY75C5101454522 dated 27.12.2022 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 C.C. No.385 of 2015 and CC.No.177 of

2017, subject to the following conditions: 8

SN, J W.P. No.649 of 2024

i) The petitioner herein shall submit an undertaking

along with an affidavit in C.C. No.385 of 2015 and

CC.No.177 of 2017, pending on the file of First Class

Magistrate at Vikarabad, stating that he will not

leave India during pendency of the said C.Cs. without

permission of the Court and that he will

co-operate with trial Court in concluding the

proceedings in the said C.Cs.;