Telangana High Court

Chada Laxmi Narasimha Reddy vs The Union Of India on 18 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

        HON'BLE MRS JUSTICE SUREPALLI NANDA

               WRIT PETITION No.6949 OF 2024

ORDER:

Heard Mr. N.Sreehar Reddy, learned counsel for

the petitioner and Mr.Sasi Kiran, learned counsel

representing the learned Deputy Solicitor General of

India appearing on behalf of the respondent.

2. The petitioner has approached the Court seeking

the following relief:

"to issue a Writ of Mandamus or any other appropriate Writ or Writs Order or Direction declaring the action of 2nd Respondent in not renewing the passport of petitioner made vide File No. HY9074719237522 dated 28.10.2022 as illegal, arbitrary and without jurisdiction and to consequently direct the Respondents to forthwith renew the passport of the petitioner made vide File No. HY9074719237522 dated 28.10.2022 for a period of 10 years under Section 10 of Passports Act 1967 and under Rule 12 of Passport Rules, 1980; Award costs and to pass any such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case, in the interests of justice."

PERUSED THE RECORD.

3. It is the specific case of the petitioner that, the

petitioner was issued a passport No.H9026498 and as his

passport was expiring, petitioner had made an online

application for its renewal vide File No. HY9074719237522

dated 28.10.2022. However, respondent No.2 issued a notice

dated 23.11.2022 calling upon the petitioner to furnish certain

clarifications pertaining to the petitioner's involvement in

Cr.No.220 of 2022 under Sections 323, 290, 506 IPCof P.S.

Dubbak i.e. on the file of Dubbak Police Station. Inspite of

receipt of the said explanation dated 18.01.2023 of the

petitioner in response to the notice dated 23.11.2022 issued to

the petitioner by the respondent No.2, the respondent No.2

had not considered the same and passed any orders.

Aggrieved by the same petitioner filed the present writ

petition.

4. The learned counsel for the petitioner further contends

that, respondents cannot refuse the renewal of passport of the

petitioner on the ground of the pendency of the aforesaid

criminal case against the petitioner and the said action of the

respondents is contrary to the procedure laid down under the

Passports Act, 1967.

DISCUSSION AND CONCLUSION:

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 to renew petitioner's passport

since the right to personal liberty of the petitioner 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 1.

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 offence involving moral turpitude and

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

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 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.

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 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. Further, the petitioner is ready to co-operate with

the trial Court in concluding trial. Therefore, the petitioner

herein sought issuance of necessary directions to respondents

for consideration of the application of the petitioner for

issuance of passport. Thus, on the ground of pendency of the

above criminal case, renewal of passport cannot be denied to

the petitioners.

14. This Court taking into consideration the fact borne

on record that petitioner's explanation dated

18.01.2023 in response to notice dated 23.11.2022

issued to the petitioner by the 2nd respondent had not

been considered as on date, this Court opines that the

same should be considered by the 2nd respondent in

accordance to law and appropriate orders passed on

petitioner's application dated 25.10.2022 seeking

renewal of petitioner's passport.

15. In view of the above facts and circumstances of

the case and duly considering the submissions of

learned Standing counsel appearing on behalf of the

respondents and duly taking into consideration the view

taken by the Supreme Court and the High Court in all

the Judgments (referred to and extracted above), the

writ petition is disposed of directing the 2nd respondent

herein to consider petitioner's explanation dated

18.01.2023 furnished by the petitioner in response to

the notice issued by the Regional Passport Officer /2nd

respondent, dated 23.11.2023 within a period of three

(03) weeks from the date of receipt of the copy of this

order, duly taking into consideration the law laid down

by the Apex Court and other High Courts in the

judgment (referred to and extracted above), in

accordance to law and pass appropriate orders on

petitioner's application dated 28.10.2022 seeking to

renew the passport of the petitioner without reference

to the pendency of the proceedings in Cr.No.220 of

2022, subject to the following conditions:

i) The petitioner herein shall submit an undertaking

along with an affidavit in Cr.No.220 of 2022,

stating that he will not leave India during

pendency of the said case without permission of

the Court and that he will co-operate with trial

Court in concluding the proceedings in the said

case.;