Telangana High Court
Ravi Banka vs Government Of India on 12 January, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE SMT JUSTICE SUREPALLI NANDA
WRIT PETITION No.1306 of 2024
ORDER:
Heard Mr. Maheedhar Puppala, learned counsel for the
petitioner and Mr. V.T. Kalyan, learned counsel for the
respondent Nos.1 and 2.
PERUSED THE RECORD.
2. The prayer as sought for by the petitioner in the
present writ petition reads as under:
"to issue a writ or order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the inaction of the Respondents herein more particularly Respondent No.2 herein in not re-issuing the passport bearing passport No.M9288865 for the reason of pending criminal case vide C.C.No.2069 of 2017 on the file of I Additional Judicial Magistrate of First Class, Hanumakonda, as illegal, arbitrary, violative of principles of natural justice, violative of provisions of Passport Act and rules made there under and also violative of Articles 14 and 21 of Constitution of India and consequently direct the 2nd respondent herein to re-issue the Passport of the petitioner duly processing the application of the petitioner vide ARN No.23-1014361883 and pass such other order or orders in the interest of justice."
3. A perusal of the record would reveal that the petitioner
has a valid passport No.M9288865 which was supposed to
expire on 25.05.2025 and since a few pages of his passport
were damaged due to oil spillage and as he was applying for 2 SN,J WP.1306 of 2024
business visa for Canada, he made an application for re-issue
of the passport on 23.11.2023 vide ARN No.23-1014361883.
The same was not considered by the respondents on the
ground that the petitioner is an accused in C.C.No.2069 of
2017 on the file of I Additional Judicial Magistrate of First
Class, Hanumakonda. Hence, the present Writ Petition.
4. Learned counsel appearing for the petitioner would
submit that the petitioner herein made an accused in a
clandestine manner without conducting proper diligence.
Further, the petitioner is also ready to co-operate with the
trial. Therefore, necessary directions may be issued to the
respondents for consideration of petitioner's application for re-
issue of the passport.
5. Respondent No.2 cannot deny re-issue of the Passport
on the ground that aforesaid Criminal Case is pending against
petitioner. It is also relevant to note that the Apex Court in
"Vangala Kasturi Rangacharyulu v. Central Bureau of
Investigation" reported in 2020 Crl.L.J. (SC) 572, had an
occasion to examine the provisions of the Passports Act,
pendency of criminal cases and held that refusal of a passport 3 SN,J WP.1306 of 2024
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 120B 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, considering the said facts, the
Apex Court held that Passport Authority cannot refuse
renewal/issue 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. 4
SN,J WP.1306 of 2024
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?
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SN,J WP.1306 of 2024
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 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 6 SN,J WP.1306 of 2024
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 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 7 SN,J WP.1306 of 2024
refuse, renewal or to demand the surrender of a passport.
11. As discussed above, the criminal case is pending against
the petitioner herein. He had submitted an application
through online on 23.11.2023 for re-issue of the passport and
the Respondent No.2 is not considering the application for
re-issue of the passport on the ground of pendency of the
aforesaid criminal case against the petitioner. On the ground
of pendency of the proceedings in criminal cases, respondent
No.2 cannot deny for re-issue of the passport to the petitioner
herein. There is no provision in the Passports Act or
Rules/Regulations that passport cannot be granted on the
ground of pendency of criminal case. In view of the same,
respondent No.2 cannot deny or refuse to issue the passport
of the petitioner.
12. In view of the aforesaid discussion, and duly
taking into consideration the view taken by the High
Courts and Supreme Court in all the Judgments
(referred to and extracted above), this writ petition is
disposed of at the admission stage directing the
respondent No.2 herein to consider the application vide 8 SN,J WP.1306 of 2024
ARN No.23-1014361883, dated 23.11.2023 submitted
by the petitioner herein seeking re-issue of the
passport on the following conditions:-
i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.2069 of 2017, pending on the file of I Additional Judicial Magistrate of First Class, Hanumakonda, stating that he shall not leave India during pendency of the said C.Cs. without permission of the Court and that he shall co-operate with trial Court in concluding the proceedings in the said C.Cs.
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 re-issue of the 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 re-issue of the passport, in accordance with law, within three (03) weeks from the date of said application;
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SN,J WP.1306 of 2024
v) Respondent No.2 shall consider Rule 12 of the Passport Rules, 1967 while considering the aforesaid application submitted by the petitioner.
vi) On re-issue of the Passport, the petitioner herein shall deposit the same before the trial Court in C.C.No.2069 of 2017, pending on the file of I Additional Judicial Magistrate of First Class, Hanumakonda; 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
Note : Furnish CC by 22.01.2024 Date:12.01.2024 ssm 10 SN,J WP.1306 of 2024
