Shri Shiva Kumar Sunkari vs The Union Of India,
2024 Latest Caselaw 1040 Tel

Telangana High Court

Shri Shiva Kumar Sunkari vs The Union Of India, on 12 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

      HON'BLE MRS JUSTICE SUREPALLI NANDA


             WRIT PETITION No.6405 of 2024
ORDER:

Heard Mr. Bommineni Vivekananda, learned

counsel for the petitioner and Mr. B. Vivekananda,

learned counsel representing Mr.Gadi Praveen Kumar,

learned Deputy Solicitor General of India, appearing on

behalf of respondents.

2. The petitioner approached this Court with the

following prayer:

"to issue a writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd Respondent in not renewing petitioner Passport bearing No K5507079 pursuant to the application vide File number HY8075047247123 dated 01022024 on the ground of pending criminal case as illegal arbitrary unconstitutional in violation of principles of natural justice and contrary to the provisions of The Passports Act 1967 and consequently direct the 2nd respondent to renew petitioner Passport bearing No K5507079 pursuant to the application vide File number HY8075047247123 dated 01022024

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without reference to the said criminal case and pass such other order or orders as the Hon'ble Court may deem fit and proper in the circumstances of the case".

3. It is the specific case of the petitioner that in response

to the application filed by the petitioner dated 07.02.2023 for

renewal of petitioner's passport bearing No.K5507079, the

petitioner received the impugned proceedings dated

01.02.2024 referring to Crime No.54/2021 under Sections

147, 448, 427, 506 r/w 149 IPC of Subedari PS and C.C. No.

1089/2021 on the file of III Addl. JFCM, Warangal and the

petitioner was called upon by the said proceedings dated

01.02.2024 of the 2nd respondent to submit acquittal order

from the case, and further the petitioner had been informed

by the Regional Passport Office, Hyderabad that the

competent authority has decided to refuse passport service to

the petitioner under Section 5 (2)(c) of the Passports Act,

1967, aggrieved by the same, petitioner filed the present writ

petition.

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4. A bare perusal of the order impugned dated 01.02.2024

clearly indicates in particular at para 2 that on the ground of

pendency of criminal case registered against the petitioner,

the competent authority had decided to refuse passport

services to the petitioner.

PERUSED THE RECORD.

5. This Court opines that pendency of criminal case

against the petitioner cannot be a ground to deny

issuance of Passport facilities to the petitioner and the

right to personal liberty of the petitioner would include

not only the right of the petitioner to travel abroad but

also the right of the petitioner to possess or hold a

Passport.

6. The Apex Court in 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."

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7. The Apex Court in Maneka 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.

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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 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

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)

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in Ganni Bhaskara Rao Vs. Union of India and another

at paras 4, 5 and 6, 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

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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."

11. It is relevant to note that the Apex Court in

Vangala Kasturi Rangacharyulu case 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

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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.

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12. Taking into consideration the facts and

circumstances of the case, the 2nd respondent is

directed to re-consider the decision dated 01.02.2024

to refuse passport service to the petitioner taking into

consideration the law laid down by the Apex Court and

other High Courts in the various judgments referred to

and extracted above and pass appropriate orders on

petitioner application 07.02.2023 seeking renewal of

passport bearing No. K5507079 without reference to

the criminal case pending against the petitioner within

three weeks from the date of receipt of a copy of this

order and duly communicate the decision to the

petitioner subject to the following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in Crime No. 54 of 2021 of Subedari P.S., vide CC No. 1089 of 2021 on the file of III Addl. FCM, Warangal stating that he will not leave India during pendency of the said C.C. without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said C.Cs.;

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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 therefrom;

iii) The petitioner herein shall submit certified copy of aforesaid undertaking before the Respondent- Passport Officer for renewal of his passport;

iv) The Respondent-Passport Officer shall consider the said application dated 07.02.2023, seeking renewal of petitioner's passport in the light of the observations made by this Court herein as well as the contents of the undertaking given by the petitioner in accordance to law.

v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the trial Court in CC No. 1089 of 2021 on the file of III Addl. FCM, Warangal and

vi) However, liberty is granted to the petitioner herein to file an application before the trial Court seeking permission to travel aboard and it is for the trial Court to consider the same in accordance to law.

13. Accordingly, the writ petition is disposed of. However,

in the circumstances of the case, there shall be no order as to

costs.

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As a sequel, miscellaneous petitions, if any, pending in

the writ petition shall also stand closed.

__________________________ MRS JUSTICE SUREPALLI NANDA

Date: 12th March, 2024

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