Merugu Gopal vs Union Of India
2024 Latest Caselaw 56 Tel

Telangana High Court

Merugu Gopal vs Union Of India on 5 January, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

        HON'BLE MRS JUSTICE SUREPALLI NANDA

                      W.P.No.230 OF 2024
ORDER:

Heard Mr.C.Naresh Reddy, learned counsel for the

petitioner and Mr.Gadi Praveen Kumar, learned Deputy

Solicitor General of India, for the respondents.

2. The petitioner approached this Court seeking the

relief as under:

"To issue any appropriate writ, order or direction one more particularly one in the nature of Writ of Mandamus, declaring the action of the 2nd Respondent in not issuing the tatkal passport to the petitioner in lieu of his damaged Passport bearing No.W0605925, as illegal, arbitrary and Unconstitutional and consequently direct the Respondents to issue the tatkal passport to the petitioner passport in Lieu of his damaged passport bearing no W0605925."

3. The case of the petitioner in brief:

It is the specific case of the petitioner that the petitioner

had filed an application dated 29.12.2023 to the 2nd

respondent for re-issuance of tatkal passport, in lieu of his

damaged passport bearing No.W0605925 inadvertently

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damaged while the petitioner has given his Jacket to the

laundry keeping the passport in the inner pocket of the

jacket. Aggrieved by the same, the petitioner approached the

Court by filing the present writ petition.

PERUSED THE RECORD.

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

herein is an accused in C.C.No.110 of 2017 for the offences

punishable under Sections 4 and 5 of the Explosive

Substances Act, on the file of the VII Metropolitan Magistrate

Cyberabad at Hayathnagar.

5. This Court opines that Respondent No.2 cannot

deny issuance of Passport on the ground that aforesaid

Criminal Cases are pending against him. It is also

relevant to note that the Apex Court in "VANGALA

KASTURI RANGACHARYULU v. CENTRAL BUREAU OF

INVESTIGATION 1" 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

. 2020 Crl.L.J. (SC) 572

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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 issuance of the passport on the ground of

pendency of the criminal appeal. Thus, the Apex Court

directed the Passport Authority to issue the passport of

the applicant without raising the objection relating to

the pendency of the aforesaid criminal case.

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6. The Apex Court in the 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 AND ANOTHER" reported in AIR 1978 SC 597, and in

"SATISH CHANDRA VERMA v. UNION OF INDIA (UOI) AND

OTHERS" reported in 2019 (2) SCC Online SC 2048 very

clearly observed that the right to travel abroad is a part of a

personal liberty and the right to possess a passport etc.,

can only be curtailed in accordance with law only and

not on the subjective satisfaction of anyone. The

procedure must also be just, fair and reasonable.

8. In the judgment dated 08.04.2022 of the Andhra

Pradesh High Court reported in 2023 (4) ALT 406 (AP) in

"GANNI BHASKARA RAO v. UNION OF INDIA AND

ANOTHER" at paras 4, 5 and 6, it is observed as under:

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"This Court after hearing both the learned counsel notices that the 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 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.

The second issue here in this case is about the applicability of Section 6(2)(e) of the Passport Act. In the opinion of this Court that section applies to issuance of a fresh passport and not for renewal of a passport. It is also clear from GSR 570(E) which is the Notification relied upon by the learned counsel for the respondents and is referred to in the counter affidavit. This Notification clarifies the procedure to be followed under Section 6 (2) of the Passport Act against a person whom the criminal cases are pending. This notification permits them to approach the Court and the Court can decide the period for which the passport is to

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be issued. This is clear from a reading of the Notification issued. Clause (a) (i) states if no period is prescribed by the Court the passport should be issued for one year. Clause (a) (ii) states if the order of the Court gives permission to travel abroad for less than a year but has not prescribed the validity period of the passport, then the passport should be for one year. Lastly, Clause (a)

(iii) states if the order of the Court permits foreign travel for more than one year but does not specify the validity of the passport, the passport should be issued for the period of travel mentioned in the order. Such a passport can also be renewed on Court orders. Therefore, a reading of GSR 570(E) makes it very clear that to give exception or to exempt applicants from the rigour of Section 6 (2)(f) of the Act, GSR 570(E) has been brought into operation. The issuance of the passport and the period of its validity; the period of travel etc., are thus under the aegis of and control of the Court."

9. It is represented by both the learned counsel on record

that the subject issue is squarely covered by the order of this

Court dated 15.11.2023 passed in W.P.No.31411 of 2023.

10. Taking into consideration, the aforesaid facts and

circumstances and duly taking into consideration the

law laid down in the various Judgments (referred to

and extracted above), the Writ Petition is disposed of at

the admission stage directing the respondent No.2

herein to consider the application dated 29.12.2023

submitted by the petitioner herein seeking

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re-issuance of his passport on the following

conditions:-

i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.110 of 2017 pending on the file VII Metropolitan Magistrate Cyberabad at Hayathnagar, stating that he shall not leave India during pendency of the said C.C. without permission of the Court and that he shall 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 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 renewal 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 renewal of passport, in accordance with law,

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within three (03) weeks from the date of said application;

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 connection with C.C.No.110 of 2017;

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.

Miscellaneous petitions, if any, pending in this Writ

Petition, shall stand closed.

___________________________________ MRS JUSTICE SUREPALLI NANDA

Date:05.01.2024

Note: Issue CC by today.

B/o. Yvkr

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