Mahendra Kumar Agarwal vs The Union Of India

Telangana High Court

Mahendra Kumar Agarwal vs The Union Of India on 12 January, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

           HON'BLE MRS JUSTICE SUREPALLI NANDA
               WRIT PETITION No.1160 OF 2024
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 to 3.

2. The petitioner approached the Court seeking prayer as

under:

"to issue an appropriate Writ, Order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of the Respondent No.3 in not renewing the passport by keeping the application pending vide File No.HY2075995084723 dated 22.11.2023 is illegal, arbitrary and consequently direct the respondent No.3 to consider the application Dated 22.11.2023 vide File No. HY2075995084723 and renew the Petitioner's Passport bearing No.Z2979343 for a further period for 10 years and permit the petitioner to travel abroad forthwith and grant such other relief or reliefs as are deemed fit and proper under the facts and circumstances of the case."

3. The case of the petitioner in brief is that, petitioner herein

has applied for renewal of passport bearing No. Z2979343 and is

valid upto 16.04.2024. Accordingly, he has submitted online

application bearing No. HY2075995084723 dated 22.11.2023 to

the Regional Passport Officer, Secunderabad, along with all the

requisite documents and fees prescribed, with a request to

renew the said passport. The same was not considered by the

respondents on the ground that, the petitioner is an accused in 2 SN, J W.P. No.1160 of 2024

criminal cases vide Cr.No.622 and 623 of 2019 before the

Madhapur P.S. for offences under Sections 120-B, 403, 406,

409, 418 and 420 of IPC. It is the specific case of the petitioner

that the said cases are at crime stage and the petitioner did not

receive any summons in the said cases from the concerned

Courts and pendency of the said cases cannot be a ground to

deny renewal of passport to the petitioner. Aggrieved by the

same, the petitioner filed the present Writ Petition.

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

of the petitioner that petitioner herein is an accused in Cr.

Nos.622 and 623 of 2019 before the Madhapur P.S. for offences

under Sections 120-B, 403, 406, 409, 418 and 420 of IPC and

the said cases are for disputes related to properties and no

agencies of the Government either Private or public are involved

in the said criminal cases.

5. When the matter is taken up for hearing, it is represented

by both the learned counsel for the petitioner as well as learned

counsel representing Dy. Solicitor General of India that, the

subject issue involved in the present writ petition is squarely

covered by the orders passed by this Court in WP.No.4277 of

2023 and WP.No.32906 of 2023.

PERUSED THE RECORD.

SN, J W.P. No.1160 of 2024

6. This court opines that mere pendency of criminal case

against the petitioner cannot be a ground to deny renewal 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.

7. It is also relevant to note that the Apex Court in Vangala

Kasturi Rangacharyulu v. Central Bureau of

Investigation 1(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 4 SN, J W.P. No.1160 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.

8. 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."

9. 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 5 SN, J W.P. No.1160 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.

10. 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."

11. 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 6 SN, J W.P. No.1160 of 2024

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.

12. 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 7 SN, J W.P. No.1160 of 2024

pendency of a case/cases is not a ground to refuse, renewal or to demand the surrender of a passport.

13. 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 respondents 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.

14. 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.HY2075995084723 dated 22.11.2023 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 Cr.No.622 and 623 of 2019 which are at

crime stage and not received any summons from concern

court, subject to the following conditions: 8

SN, J W.P. No.1160 of 2024

i) The petitioner herein shall submit an undertaking

along with an affidavit in Cr.No.622 and 623 of 2019

pending before concern L.B.Nagar Court, Ranga

Reddy District, stating that he will not leave India

during pendency of the said criminal cases without

permission of the Court and that he will

co-operate with trial Court in concluding the

proceedings in the said Criminal cases;