Telangana High Court

Thota Sampath vs The Passport Officer on 18 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA
              WRIT PETITION No.34845 OF 2023
ORDER:

Heard Mr.M.Ajay Kumar, learned counsel for the

petitioner and also heard learned Government Pleader for

Central Government, appearing on behalf of respondent

No.1 and learned Government Pleader for Home,

appearing on behalf of respondent Nos.2 and 3.

2. The petitioner approached the Court seeking prayer

as under:

"to issue a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents in not issuing the passport basing on the application of the petitioner vide reference No.22-1010285069, dated 19.09.2022 after attending the appointment date 14.11.2022 not issuing the passport to the petitioner to go to Texas, USA to attend the convocation of the daughter of the petitioner, is illegal, arbitrary and against the principles of natural justice and also violative of Articles 14, 19 and 21 of the Constitution of India and also violative of the Order of this Hon'ble Court passed in W.P. No. 32906 of 2023, dated 05.12.2023 and consequently direct the respondents to issue the passport to the petitioner immediately in the interest of justice and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

3. The case of the petitioner in brief is that, petitioner herein

had applied for issuance of passport application vide reference

No.22-1010285069, dated 19.09.2022 after attending the

appointment dated 14.11.2022 and thereafter on 16.11.2023

the 3rd respondent visited the house of the petitioner for

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verification and informed that, there are criminal cases vide

Cr.No.97 of 2017 PS, Hasthinapur, Cr.No.154 of 2018, PS

Hanamkonda and Cr.No.139 of 2016 of PS, Hanamkonda

pending against the petitioner. It is the specific case of the

petitioner that the said cases were in relation to the disputes

which are civil disputes and the petitioner had purchased the

property through registered sale deeds and some other third

parties are also claiming the said property and cases were

registered against the petitioner by the said persons and the said

cases are closed and the documents executed in petitioner's

favour by his vendors were cancelled by the then Commissioner

of Police, Warangal in the month of August 2023 and it was also

informed that they are going to close the three cases against the

petitioner, but the 3rd respondent without verifying records and

name, father's name, caste etc., stated that the petitioner is

involved in the criminal cases and he is not entitled for passport.

Merely on the basis of report of 3rd respondent, the petitioner's

passport was not released till this date inspite of the petitioner

having attended the interview. Aggrieved by the same, the

petitioner filed the present Writ Petition.

4. It is contended by the learned counsel appearing on behalf

of the petitioner that the petitioner herein is an accused in Cr.

Nos. Cr.No.97 of 2017 PS, Hasthinapur, Cr.No.154 of 2018, PS

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Hanamkonda and Cr.No.139 of 2016 of PS, Hanamkonda and the

said cases are for disputes related to properties and no agencies

of the Government either Private or public are involved in the

said criminal cases, since the said cases are civil in nature.

Therefore, the petitioner sought to issue necessary directions to

the respondent No.2 for consideration of petitioner's application

for issuance of passport.

5. The learned counsel for the petitioner further contends

that, respondents cannot refuse the issuance of passport

facilities to the petitioner on the ground of the pendency of the

aforesaid criminal cases(which are at crime stage) against the

petitioner and the said action of the respondents is contrary to

the procedure laid down under the Passports Act, 1967.

6. When the matter is taken up for hearing, it is represented

by both the learned counsel for the petitioner as well as learned

Government Pleader for Central Government, appearing on

behalf of respondent No.1 that, the subject issue involved in the

present writ petition is squarely covered by the orders passed by

this Court in WP.No.32906 of 2023, dated 05.12.2023.

PERUSED THE RECORD.

7. This court opines that mere pendency of criminal case

against the petitioner cannot be a ground to deny renewal of

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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.

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

Vangala Kasturi Rangacharyulu v. Central Bureau of

Investigation reported in 2020 (Crl.L.H(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.

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Thus, the Apex Court directed the Passport Authority to renew

the passport of the applicant without raising the objection

relating to the pendency of the aforesaid criminal appeal in S.C.

9. 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."

10. 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

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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."

11. 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."

12. 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

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a right to travel abroad cannot be deprived except by just,

fair and reasonable procedure.

13. 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.

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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.

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

pendency of criminal cases is not a ground to decline issuance

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

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for consideration of the application of the petitioner for issuance

of passport facility to the peitioner. Thus, on the ground of

pendency of the above criminal case, passport cannot be denied

to the petitioner.

15. In view of the aforesaid discussion and duly

considering the submissions of learned counsel for the

petitioner as well as respondents, this writ petition is

disposed of at the admission stage, directing the

respondents to consider the application vide reference

No.22-1010285069 dated 19.09.2022 submitted by the

petitioner seeking issuance of the passport facilities to the

petitioner, in accordance to law, duly taking into

consideration the view taken by the Supreme Court and

the High Courts in all the Judgments referred to and

extracted above within a period of three (3) weeks from

the date of receipt of the copy of the order, without

reference to the pendency of the proceedings in Cr.No.97

of 2017 PS, Hasthinapur, Cr.No.154 of 2018, PS

Hanamkonda and Cr.No.139 of 2016 of PS, Hanamkonda

which are at crime stage, subject to the following

conditions:

i) The petitioner herein shall submit an undertaking

along with an affidavit in Cr.No.97 of 2017 PS,

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Hasthinapur, Cr.No.154 of 2018, PS Hanamkonda

and Cr.No.139 of 2016 of PS, Hanamkonda stating

that he will not leave India during pendency of the

said criminal cases without permission of the Court

and that he will co-operate with trial Court in

concluding the proceedings in the said Criminal

cases;