Mohammed Masooduddin vs The Regional Passport Officer
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Telangana High Court

Mohammed Masooduddin vs The Regional Passport Officer on 21 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

          HON'BLE MRS JUSTICE SUREPALLI NANDA


              WRIT PETITION No.322 OF 2024
ORDER:

Heard Mr.Vikar Ahmed, learned counsel for the

petitioner and Mr.P.Shashidhar Reddy, learned Standing

Counsel for Central Government, appearing on behalf of

sole-respondent.

2. The petitioner approached the Court seeking the

prayer as under:

"to issue any Writ, order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the action of Respondent in not processing the Petitioner's file vide File No.HY1074083693922 for renewal of Petitioner's Passport bearing No.J3471801 on the ground of FIR No.911/2018 U/s.420, 423, 468, 471 IPC & Sec.120(B) IPC on the file of P.S. Mailardevpally, Cyberabad Commissionerate, inspite of filing Charge Sheet vide CC.No.4007 of 2021 on the file of Hon'ble XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar, and the case is pending trial, as illegal, arbitrary and violation of principles of natural justice and consequently, direct the Respondent to process the Petitioner's file vide File No.HY1074083693922 and renew the Petitioner's Passport bearing No.J3471801 and pass such other order or orders as deemed fit and proper in the circumstances."

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3. The case of the petitioner, in brief, as per the

averments made by the petitioner in the affidavit filed by

the petitioner in support of the present writ petition, is as

follows:

a) The petitioner herein has obtained passport on 21.09.2010

and the same was issued by the Competent authority vide

passport No.J3471801 which was valid up to 20.09.2020. On

31.03.2022 the petitioner applied for renewal of passport vide

online application bearing No.HY1074083693922 dated

31.03.2022 of said passport bearing No.J3471801 to the 2nd

respondent - Regional Passport Officer, Secunderabad, along

with all the requisite documents and fees prescribed, with a

request to renew the passport.

b) It is the specific grievance of the petitioner that, instead of

renewing the petitioner's passport, the 2nd respondent had

stopped processing the Petitioner's file vide letter dated

11.06.2022 in view of FIR No.911 of 2018, registered against the

petitioner under Sections 420, 423, 468, 471 IPC and Section

120(B) of IPC, pending on the file of P.S. Mailardevpally,

Cyberabad Commissionerate and sought certain clarifications

from the petitioner pertaining to petitioner's involvement in the

said cases. Whereas the Police had filed charge sheet vide C.C.

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No.4007 of 2021 pending on the file of XIV Additional

Metropolitan Magistrate, Cyberabad at Rajendranagar.

c) It is further the case of the petitioner that petitioner has

nothing to do with the above case and the same has been foisted

falsely against the petitioner and the same has been explained

by the petitioner to the respondent and petitioner requested the

respondent to renew the passport of the petitioner, but however,

the respondent neither considered the request of the petitioner

nor renewed the passport of the petitioner by processing the

petitioner's file vide File No.HY1074083693922. Aggrieved by the

said action of the respondent, the petitioner approached the

Court by way of filing the present Writ petition. Hence, the writ

Petition.

4. The learned counsel appearing on behalf of the petitioner

submits that, the petitioner has nothing to do with the case filed

against the petitioner and the petitioner had been falsely

implicated in the said case and the respondent herein cannot

keep application filed by the petitioner seeking renewal of

passport pending on the ground of FIR registered against the

petitioner on the file of P.S. Mailardevpally, Cyberabad

Commissionerate.

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5. It is the further contention of the learned counsel

appearing on behalf of the petitioner that, on the ground that

petitioner herein is an accused in criminal case vide C.C.No.4007

of 2021 pending on the file of XIV Additional Metropolitan

Magistrate, Cyberabad at Rajendranagar, the renewal of

petitioner's passport cannot be denied to the petitioner and the

said action of the respondents is contrary to the procedure laid

down under the Passports Act, 1967 and, therefore, the

petitioner sought to issue necessary directions to the respondent

for consideration of the petitioner's application dated 31.03.2022

for renewal of passport.

6. The learned Standing Counsel appearing on behalf of

respondent/passport authority submits that, the

petitioner instead of furnishing his explanation in writing

to the letter dated 11.06.2022, approached this Court by

filing the present Writ petition.

PERUSED THE RECORD.

7. This court opines that pendency of criminal case

against the petitioner cannot be a ground for not

considering the petitioner's application vide file bearing

No. HY1074083693922 dated 31.03.2022 for renewal of

passport bearing No. J3471801 since the right to

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petitioner's personal liberty would include not only the

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

right to possess a Passport.

8. It is also relevant to note that the Respondent 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 respondent 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.

9. 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 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,

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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.

10. 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."

11. 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:

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"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.

12. 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."

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13. 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.

14. 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

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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

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validity; the period of travel etc., are thus under the aegis of and control of the Court.

15. In the light of the discussion as arrived at as above and

duly considering the view and observations of the Apex Court

and other High Courts in the judgments referred to and

extracted 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.

16. Taking into consideration the fact as borne on record

that, the petitioner did not furnish any written

explanation/clarifications as sought for by the

respondent passport authority, vide its letter dated

11.06.2022, petitioner is directed to submit petitioner's

detailed explanation within a period of one (01) week

from the date of receipt of the copy of this order in

response to the letter, dated 11.06.2022 issued by the

respondent to the petitioner and upon receipt of the same

the respondent is directed to consider the said

explanation and pass appropriate orders, in accordance to

law, within a period of three(03) weeks thereafter, on

petitioner's application dated 31.03.2022 seeking to

renew petitioner's passport bearing No.J3471801 duly

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taking into consideration the view taken by the Supreme

Court and the High Courts in all the Judgments referred to

and extracted above without reference to the pendency of

the proceedings in criminal case vide C.C.No.4007 of 2021

pending on the file of XIV Additional Metropolitan

Magistrate, Cyberabad at Rajendranagar, subject to the

following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in criminal case vide C.C.No.4007 of 2021 on the file of XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar, 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.C.;

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 issuance of their passport;

iv) The Respondent-Passport Officer shall consider the said application in the light of the observations made by this Court herein as well as the contents of the undertaking given by the petitioners for renewal of passport in accordance to law;

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v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in criminal case vide C.C.No.4007 of 2021 pending on the file of XIV Additional Metropolitan Magistrate, Cyberabad at Rajendranagar; 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 with law.

However, in the circumstances of the case, there shall be

no order as to costs.

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

writ petition shall also stand closed.

__________________________ MRS JUSTICE SUREPALLI NANDA

Date: 21st March, 2024 ksl

SN, J

HON'BLE MRS JUSTICE SUREPALLI NANDA

DATED:21.03.2024

ksl