Telangana High Court

Zehra Farheen vs The Union Of India on 11 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA

            WRIT PETITION No.1795 OF 2024

ORDER:

Heard Mr. Omar A Pasha, learned counsel for the

petitioner and R.Mangulal, learned Standing Counsel for

Central Government, appearing on behalf of

respondents.

2. The petitioner has approached the Court seeking

the following relief:

"to pass an order, direction or Writ particularly in the nature of Writ of Mandamus, declaring the action of the Respondents in not considering the petitioner's representation, dated 08.01.2024 for renewal of the petitioner's passport bearing No.K0748773, as illegal, arbitrary, unconstitutional, contrary to the principles of natural justice and contrary to the provisions of the Passports Act, 1967 and consequently direct the respondents to consider the petitioner's representation dated 08.01.2024 for renewal of the petitioner's passport bearing No.K0748773, pursuant to the petitioner's application, dated 04.02.2022."

3. The case of the petitioner, in brief, is as follows:

It is the specific case of the petitioner that the petitioner

applied for renewal of passport vide application, dated

04.02.2022 and even represented to the 2nd respondent vide

representation dated 08.01.2024. However, the petitioner's

request for issuance of renewal of passport had not been

considered due to pendency of criminal case against the

petitioner. The petitioner is involved as an accused in

CC.NO.452 of 2015 under Sections 420,498-A and 384 IPC

read with Section 3,4 and 6 of Dowry Prohibition Act, 1961 on

the file of learned XIII Additional Metropolitan Magistrate,

Rajendranagar. Inspite of the petitioner's detailed

representation, dated 08.01.2024 addressed to the respondent

No.2, yet no action had been initiated, in passing orders on

petitioner's application dated 04.02.2022 seeking renewal of

passport bearing No.K0748773 till as on date and aggrieved

by the same, the petitioner approached the Court by filing the

present writ petition.

PERUSED THE RECORD.

4. Learned Standing Counsel appearing for the

respondents brings on record written instructions,

dated 15.02.2024 and placed reliance on paragraph

Nos. 7 and 8 which read as under:-

7. The Passport of the petitioner bearing No.K0748773, dated 17.02.2012 validity up to 16.02.2022 has been expired its validity. The petitioner should approach the

Consulate General of India at Washington and request for Emergency Certificate to travel to India.

8. This office can reconsider his application, subject to submission of acquittal order from the case or permission to travel abroad from the same Hon'ble Court where the criminal case is still pending. In this regard, the Ministry of External Affairs Gazette Notification vide GSR-570(E), dated 25.08.1993.

DISCUSSION AND CONCLUSION:

5. 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.

6. It is also relevant to note that the Respondents cannot

refuse the renewal of passport of the petitioners on the ground

of the pendency of the aforesaid criminal case against the

petitioners and the said action of the respondents 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 reported in 2020 Crl.L.J (SC) 572.

7. 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,

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 issue 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 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 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 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 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.

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

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

passport.

14. Taking into consideration, the facts and

circumstances of the case, respondent Nos.2 and 3 are

directed to consider the petitioner's application, dated

04.02.2022 seeking the renewal of passport bearing

No.K0748773 duly taking into consideration

petitioner's representation dated 08.01.2024 addressed

to respondent Nos. 2 and 3 and the view taken by the

Hon'ble High Courts and Hon'ble Supreme Court in all

the Judgments (referred to and extracted above), and