Telangana High Court

Laxman Paripelly vs The Union Of India on 12 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS. JUSTICE SUREPALLI NANDA


              WRIT PETITION No.5966 of 2024

ORDER:

Heard Mr.K.Venumadhav, learned counsel

appearing on behalf of petitioner and learned Counsel

representing Mr.Gadi Praveen Kumar, learned Deputy

Solicitor General of India, appearing on behalf of

respondent Nos.1 and 2.

2. The Petitioner approached the Court seeking the

prayer as under:

"to issue an order or direction more particularly one in the nature of writ of Mandamus or any other appropriate writ declaring the action of the respondent No. 2 authority in passing the orders in No. HYD/30/POL/PIC/1089/2023, dated 19-02-2024, directing the petitioner to surrender his passport bearing No. B7868136, dated 23-11- 2023, within 15 days failing which action will be initiated against the petitioner and further saying that the said authority has no objection to restore the passport of the petitioner on production of acquittal order from the concerned court, is nothing but arbitrary, illegal, null and void and violative of principles of natural justice and also violative of Articles 14 and 21 of the Constitution of India. Consequently set aside the above said orders of the respondent No.2 authority, and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice."

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

a) A passport with Passport No.K6409741 was issued

to the petitioner by the 2nd Respondent Authority on

13.06.2012 and the same is valid till 12.06.2022. On expiry of

the said passport, on an application dated 02.11.2023

submitted by the petitioner for renewal of the same, the

respondent No.2 considering petitioner's renewal application

issued renewed passport No.B7868136 on 23.11.2023 and

the same is valid till 22.11.2033.

b) The petitioner further submits that respondent

No.2 issued a letter reference No.SCN/316404991/2023,

dated 06.12.2023 asking to provide a suitable explanation

regarding the circumstances under which the petitioner had

suppressed the material information in petitioner's passport

application and petitioner was informed to visit RPO

Secunderabad, within 30 days with explanation and also with

court order. The petitioner then submitted a detailed

explanation on 29.01.2024 by explaining the facts that due to

petitioner's inadvertence and old age, the petitioner could not

notice the relevant column informing about pendency of

criminal case, which arises out of ancestral property dispute

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between family members and when the petitioner tried to

construct a compound wall in petitioner's partitioned property,

the petitioner's cousin had filed a false case against the

petitioner without petitioner's involvement, and the police had

registered crime No.240 of 2017 under section 448, 427, 323

and 506 read with 34 of I.P.C., section 156(3) Cr.P.C.,

requesting the Respondent Authority to consider the

explanation. The petitioner further contends that non

disclosure of the said case is neither wanton nor intentional

but for the above said reasons.

c) It is further the case of the petitioner that the 2nd

respondent herein without even looking into petitioner's

explanation, without considering petitioner's explanation

dated 29.01.2024 to the Show Cause Notice dated

06.12.2023 issued to the petitioner by the 2nd respondent,

without assigning any reasons, without giving any opportunity

of personal hearing to the petitioner, had issued a proceeding

No.HYD/30/POL/PIC/1089/2023, dated 19.02.2024 directing

the petitioner to surrender petitioner's passport bearing

No.B7868136, dated 23.11.2023, within 15 days, failing which

action would be taken against the petitioner in accordance to

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law and further it is also stated in the said letter that the

Respondent Authority has no objection to restore passport

facilities to the petitioner on production of acquittal order by

the petitioner from the trial Court where criminal proceedings

are pending. Aggrieved by the same the petitioner

approached the Court by way of filing present writ petition.

Hence, the petition.

PERUSED THE RECORD

4. A bare perusal of the order impugned dated 19.02.2024

clearly indicates that the same is passed without considering

petitioner's explanation dated 29.01.2024 in response to the

Show Cause Notice dated 06.12.2023 issued to the petitioner

by 2nd respondent though a reference is made to the

explanation dated 29.01.2024 furnished by the petitioner to

the 2nd respondent herein, yet there is no discussion of the

plea's put forth by the petitioner in the said explanation dated

29.01.2024 forwarded to the 2nd respondent. Hence, the order

impugned dated 19.02.2024 is hereby set aside.

5. This Court opines that pendency of Criminal Case

is not a bar to issue passport facilities to the petitioner,

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or to renew the passport of the petitioner or to seek

surrender of passport of the petitioner since

petitioner's right to personal liberty not only includes

petitioner's right to travel abroad but also to posses or

hold 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 reported in 2020 Crl.L.J.(SC) 572 in Vangala Kasturi

Rangacharyulu v. Central Bureau of Investigation.

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

Vangala Kasturi Rangacharyulu (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

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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:

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"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 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.

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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.

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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 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.

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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. Taking into consideration the aforesaid facts and

circumstances of the case, duly taking into

consideration the law laid down by the Apex Court and

other High Courts in the various Judgments (referred to

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and extracted above) the 2nd respondent herein is

directed to re-consider the decision dated 19.02.2024

passed vide proceedings No.HYD/30/POL/PIC/1089/

2023, of the 2nd respondent, duly taking into

consideration the explanation dated 29.01.2024

submitted by the petitioner in the light of the

observations made by the Apex Court and other High