Faizulla Khan vs Union Of India
2024 Latest Caselaw 23 Tel

Telangana High Court

Faizulla Khan vs Union Of India on 3 January, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE SMT JUSTICE SUREPALLI NANDA

                WRIT PETITION No.7 of 2024
ORDER:

Heard M/s M.A.K. Mukheed, learned counsel appearing

for the petitioner and Mr. Pulimamidi Shashidhar Reddy,

learned counsel for the respondents.

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 more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the Respondent No.2 not issuing passport to the Petitioner vide File No.HY4065373929723 dated 18.05.2023, as illegal, arbitrary, unjust, unconstitutional and in violation of principles of natural justice and consequently direct the Respondent No.2 to process the Petitioner's file vide No.HY4065373929723 dated 18.05.2023 and issue passport to the Petitioner and pass such other order or orders as this Hon'ble court deems fit and proper in the circumstances of the case."

3. A perusal of the record would reveal that, the petitioner

is councilor of Bhainsa Municipality and discharging his duties

since 9 years, whereas the following cases have been

registered against the petitioner pertaining to agitation for

public issue and the same are registered as :

SN,J WP.7 of 2024

i. Cr.No.129/2009 U/s.148, 149, 506, 294, 427, 147 read

with 149 of IPC wherein charge sheet has been filed vide

C.C.No.61 of 2018 and the case is pending trial before the

Hon'ble Judicial First Class Magistrate Court at Bhainsa,

Nirmal District.

ii. Cr.No.105/2017 U/s.352 of IPC wherein charge sheet

has been filed vide C.C.No.538/2017 and the case is pending

trial before the Hon'ble Judicial First Class Magistrate Court at

Bhainsa, Nirmal District.

iii. Cr.No.23/2020 U/s.143, 147, 153 (a), 295-A, 324, 436

R/w 149 IPC, the case is under investigation.

iv. Cr.No.24/2020 U/s.143, 147, 148, 448, 153(a), 295-A,

324, 506 R/w 149 IPC, the case is under investigation.

v. Cr.No.25/2020 U/s.143, 147, 148, 448, 153(a), 295-A,

324, 506 R/w 149 IPC, the case is under investigation.

vi. Cr.No.34/2020 U/s.307, 380, 435, 436, 143, 147, R/w

149 IPC, the case is under investigation.

4. The petitioner herein has applied for passport before the

passport authorities vide File No.HY4065373929723, dated

18.05.2023. The respondent No.2 is not issuing passport on

SN,J WP.7 of 2024

the ground of pendency of the aforesaid criminal cases

against the petitioner. Hence the petitioner filed the present

writ petition.

5. Learned counsel appearing for the petitioner would

submit that, the petitioner herein was falsely implicated in the

aforesaid crimes. Further, that 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 issuance of passport.

6. Respondent No.2 cannot deny issuance of 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

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.

SN,J WP.7 of 2024

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.

7. 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

SN,J WP.7 of 2024

entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution of India."

8. 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 arbitrary, oppressive or unjust may be prescribed by the law.

SN,J WP.7 of 2024

Therefore, such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.

9. 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."

10. 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 WP.7 of 2024

11. 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 WP.7 of 2024

12. As discussed above, certain criminal cases are pending

against the petitioner herein. He had submitted an application

through online on 18-05-2023 for issuance of passport and

the Respondent No.2 is not considering the application for

issuance of passport on the ground of pendency of the

aforesaid criminal cases against the petitioner. On the ground

of pendency of the proceedings in criminal cases, respondent

No.2 cannot deny for issuance of 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 cases. In view of the same,

respondent No.2 cannot deny or refuse to issue the passport

of the petitioner.

13. 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 File

No.HY4065373929723, dated 18.05.2023 submitted by

SN,J WP.7 of 2024

the petitioner herein seeking issuance of passport on

the following conditions:-

i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.61 of 2018, CC.No.538 of 2017, pending on the file Judicial First Class Magistrate, Court of Bhainsa, Nirmal District, 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 issuance 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 issuance of passport, in accordance with law, within three (03) weeks from the date of said application;

SN,J WP.7 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 issuance of the Passport, the petitioner herein shall deposit the same before the trial Court in C.C.No.61 of 2018, CC.No.538 of 2017, pending on the file Judicial I Class Magistrate, Court of Bhainsa, Nirmal District; 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:03.01.2024 ssm