Telangana High Court
Karim Lalani vs The Union Of India on 11 January, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA WRIT PETITION No.860 OF 2024 ORDER:
Heard Mr. Kondadi Ajay Kumar, learned counsel for
the petitioner and Sri Gadi Praveen Kumar, learned
Deputy Solicitor General of India appearing for sole-
respondent.
2. The case of the petitioner in brief is that the petitioner herein
is holder of passport bearing No.L2251869 dated 18.06.2013. He
has submitted online application bearing No.HYE074816072922
dated 27.09.2023 with respondent, 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 case
No.1175 of 2020 on the file of Judicial Magistrate of First Class,
Adilabad and the said case is posted on 12.01.2023 and the
summons are awaited in the said case. 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.1175 of 2020 for the offences punishable under Section 3
and 4 of Gaming Act and it is pending for appearance and the
petitioner is not even convicted in the said case. Respondent
cannot refuse the renewal of passport of the petitioner on the 2 SN, J W.P. No.860 of 2024
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.
4. 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
same is pending. Therefore, considering the said facts, the Apex
1 . 2020 Crl.L.J. (SC) 572 3 SN, J W.P. No.860 of 2024
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.
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 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 4 SN, J W.P. No.860 of 2024
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 High
Court of Punjab and Haryana at Chandigarh in Noor Paul 5 SN, J W.P. No.860 of 2024
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 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.
6
SN, J W.P. No.860 of 2024
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. In view of the aforesaid discussion, this writ
petition is disposed of at the admission stage, directing
respondent to consider the application bearing No.
HYE074816072922 dated 27.09.2023 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 C.C.No.1175 of 2020, subject to the
following conditions:
i) The petitioner herein shall submit an undertaking
along with an affidavit in C.C.No.1175 of 2020,
pending on the file of Judicial Magistrate of First
Class, Adilabad, stating that he will not leave India
during pendency of the said C.C. without permission 7 SN, J W.P. No.860 of 2024
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 renewal of his 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 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.1175 of 2020; and
vi) However, liberty is granted to the petitioner herein to
file an application before the trial Court seeking
permission to travel aboard and it is for the trial
Court to consider the same in accordance with law. 8
SN, J W.P. No.860 of 2024
However, in the circumstances of the case, there shall be
no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the
writ petition shall also stand closed.
__________________________ MRS JUSTICE SUREPALLI NANDA
Date: 11th, January, 2024 HK