Sachin Agarwal vs The Union Of India
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Telangana High Court

Sachin Agarwal vs The Union Of India on 11 January, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE SMT JUSTICE SUREPALLI NANDA

             WRIT PETITION No.1212 of 2024
ORDER:

Heard Mr.M.Ram Mohan Reddy, learned counsel

appearing on behalf of the petitioner and Mr.Gadi

Praveen Kumar, learned Deputy Solicitor General

appearing on behalf of the respondents.

2. The prayer as sought for by the petitioner in the

present writ petition reads as under:

"...to issue a writ order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the 2nd Respondent in not renewing petitioners Passport bearing No.K1822307 pursuant to the application vide File number HY2074169111722, vide dated 11/06/2022 on the ground of pending Criminal Case vide CC No. 1521/2019 U/s 406, 420, 506 r/w 34 of IPC on the file of XXI MM Court at Medchal as illegal arbitrary unconstitutional violation of Article 21 of the Constitution of India and apart from being in violation of principles of natural justice, and contrary to the provisions of The Passports Act 1967 and rules there under and consequently direct the 2nd respondent to renew and release the petitioners passport bearing No. K 1822307 pursuant to the application without reference to the said criminal case..."

3. It is represented by both the learned counsel for

the petitioner and learned counsel for the respondents

that the subject issue is squarely covered by the order

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of this Court dated 05.12.2023 passed in W.P.No.32906

of 2023.

PERUSED THE RECORD.

4. Respondent No.2 cannot deny renewal of Passport to the

petitioner on the ground that Criminal Case is pending against

the petitioner. It is relevant to note that the Apex Court in

2020 Crl.L.J. (SC) 572 in "Vangala Kasturi Rangacharyulu

v. Central Bureau of Investigation" had an occasion to

examine the provisions of the Passports Act, 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, 468, 471 and 477A read

with 120 B of the 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,

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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/issue the passport of

the applicant without raising the objection relating to the

pendency of the aforesaid criminal case.

5. 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."

6. 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

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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.

7. 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."

8. 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.

9. 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 present. Every conviction

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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.

10. 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.

11. Taking into consideration, the aforesaid facts and

circumstances and duly taking into consideration the

view taken by the High Courts and Supreme Court in all

the Judgments (referred to and extracted above), the

Writ Petition is disposed of at the admission stage,

directing the respondent No.2 herein to consider the

application vide File No.HY2074169111722, dated

11.06.2022 submitted by the petitioner herein seeking

renewal of passport on the following conditions:-

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i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.1521 of 2019, pending on the file XXI MM Court at Medchal, stating that he shall not leave India during pendency of the said C.C. without permission of the Court and that he shall 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 there from;

iii) The petitioner herein shall submit an application afresh along with certified copy of this order as well as the aforesaid undertaking before the Passport Officer/ Authority concerned for renewal of passport;

iv) On filing such an application, the Passport Officer/Authority shall consider the same afresh 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 passport, in accordance with law, within three (03) weeks from the date of said application;

v) Respondent No.2 shall consider Rule 12 of the Passport Rules, 1967 while considering the aforesaid application submitted by the petitioner.

vi) On renewal of the Passport, the petitioner herein shall deposit the same before the trial Court in

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C.C.No.1521 of 2019, pending on the file XXI M.M. Court at Medchal; and

vii) However, liberty is granted to the petitioner herein to file an application before the learned Magistrate seeking permission to travel abroad, and it is for the learned Magistrate to consider the same in accordance with law.

However, in the circumstances of the case, there shall

be no order as to costs.

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

in the Writ Petition shall also stand closed.

_________________ SUREPALLI NANDA, J Date:11.01.2024

Note: Issue CC in three days B/o. Yvkr