Nithya Reddy vs Union Of India

Telangana High Court

Nithya Reddy vs Union Of India on 12 January, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA


              WRIT PETITION No.32735 OF 2023
ORDER:

Heard learned counsel for the petitioner and also

heard learned Counsel representing Dy. Solicitor General

of India, appearing on behalf of respondent Nos.1 and 2.

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

petitioner was minor, her parents applied for her passport and

she was initially issued a passport bearing No.YN75434 on

02.04.1987 by the respondent No.2, which was later renewed on

19.12.1997, with new Passport as No.A4574573 in accordance

with the provisions of the Passport Act, 1967 and both the

passports along with educational certificates were under the care

of the petitioner's father.

The petitioner herein further submitted that, after

petitioner's marriage and relocation to New Delhi in the year

2002, the petitioner's father continued to be in possession of her

passport and educational documents. The petitioner's father

passed away in the year 2005 and in the year 2007 when the

petitioner intended to travel, she discovered that her documents

were missing/misplaced at her parents' house. Upon realizing

the same, the petitioner filed FIR on 11.11.2008. 2

SN, J W.P. No.32735 of 2023

The petitioner further averred that, when the documents

including passport were not traceable by the petitioner, the

petitioner undertook the process of re-issuance of passport

through a Broker based in Delhi and the petitioner received

Passport No.H3069433 dated 30.01.2009, same was renewed on

19.07.2013 and the current passport is numbered as Z2620295.

In the year 2018 the petitioner shifted back to Hyderabad upon

being re-located to Hyderabad, the petitioner filed an Application

No.HY2073974027522 dated 22.02.2022 to change her address

from New Delhi to Hyderabad and also the petitioner issued a

letter dated 24.02.2022 to respondent No.2 requesting for re-

issuance of passport with the required address change and also

notified about the loss of all her certificates. The same was not

considered by the respondent on the ground that, the petitioner

is an accused in criminal cases vide Cr.No.06 of 2007 before CCB

& CB CID Court and in Charge sheet vide CC.No.5145 of 2023

and the petitioner had received summons from the concerned

Court in Chennai and petitioner marked her appearance before

the concerned Court and the NBW was recalled by the said

Court. Hence, the present Writ Petition.

3. It is contended by the learned counsel appearing on behalf

of the petitioner that, the case pending against the petitioner

before the concerned Court at Chennai pertains to certain loan 3 SN, J W.P. No.32735 of 2023

that petitioner's husband along with the petitioner had taken

from S.Behari Lal and the same was repaid with interest in

timely manner. The Counsels in Chennai are taking all steps to

ensure that the proceedings against the petitioner are

discontinued and further submitted that the petitioner has been

wrongly and unalwfully implicated in to the said case filed

against the petitioner herein. The said submission of learned

counsel for the petitioner is not disputed by the learned counsel

appearing on behalf of respondents.

PERUSED THE RECORD.

4. This court opines that pendency of criminal case against

the petitioner cannot be a ground to deny issuance of Passport to

the petitioner and the right to personal liberty would include not

only the right to travel abroad but also the right to possess a

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.

1 . 2020 Crl.L.J. (SC) 572 4 SN, J W.P. No.32735 of 2023

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

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. 5 SN, J W.P. No.32735 of 2023

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,

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 6 SN, J W.P. No.32735 of 2023

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 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.

SN, J W.P. No.32735 of 2023

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 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.

SN, J W.P. No.32735 of 2023

11. In view of the above, this Court opines that mere

pendency of criminal case is not a ground to decline renewal of

passport. Further, in view of the submission of the learned

counsel for the petitioner that, the Counsels in Chennai are

taking all steps to ensure that the proceedings against the

petitioner are discontinued in concerned court at Chennai.

Therefore, the petitioner herein sought issuance of necessary

directions to respondent for consideration of the application of

the petitioner for renewal of passport with required address

change. Thus, on the ground of pendency of the above criminal

case, passport cannot be denied to the petitioner.

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

is disposed of at the admission stage, directing the

respondent No.2 to consider the application bearing

No.HY2073974027522 dated 22.02.2022 submitted by the

petitioner seeking to renew the passport with required

address change 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.5145 of 2023, subject to the following conditions:

i) The petitioner herein shall submit an undertaking

along with an affidavit in Cr.No.06 of 2007, pending 9 SN, J W.P. No.32735 of 2023

on the file of CCB & CB CID Court, Chennai in

Chargesheet vide C.C. No.5145 of 2023, stating that

she 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

CCB & CB CID Court, Chennai shall issue a certified

copy of the same within two (02) weeks therefrom;