Thonda Ravi vs The Government Of India
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Telangana High Court

Thonda Ravi vs The Government Of India on 1 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

          HON'BLE MRS JUSTICE SUREPALLI NANDA

                 WRIT PETITION No.658 OF 2024

ORDER:

Heard Mr.A.Jagan, learned counsel appearing on

behalf of the petitioner and Ms.G.Sampada, learned

Standing Counsel for Central Government appearing on

behalf of respondent Nos.1 and 2.

2. The case of the petitioner in brief is that, the petitioner

herein had applied for issuance of passport on 26.08.2023 to the

2nd respondent - Regional Passport Officer, Secunderabad, along

with all the requisite documents and fees prescribed, with a

request to issue the passport and the petitioner had received

Show Cause Notice dated 28.10.2023 but however, the

petitioner did not reply to the said Show Cause Notice and

approached the Court challenging the proceedings dated

09.10.2023 issued by the respondent No.2 herein wherein it is

stated that there is an adverse report against the petitioner and

the petitioner is accused in criminal case vide S.C.No.64 of 2019

on the file of Additional Sessions Judge Court, Chevella. Hence,

the present Writ Petition.

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

of the petitioner that petitioner herein is accused in S.C.No.64 of

2019 in Cr.No.272 of 2017 filed under Sections 307, 120-B of

IPC pending on the file of Additional Sessions Judge Court,

Chevella. Therefore, the petitioner sought to issue necessary

directions to the respondents for consideration of petitioner's

application for issuance of passport.

4. The learned counsel for the petitioner further contends

that, respondents cannot refuse the issuance 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.

5. A counter affidavit has been filed by respondent No.2

wherein in paragraph Nos.3 and 4, it is specifically averred as

under:

"3. I submit that the petitioner applied for fresh issue of his passport vide file Number HY3065720517123 dated 26.08.2023. The file was processed with Pre police Verification and received adverse passport verification report stating that the petitioner is involved in Cr.No.272 of 2017 under

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Sections 307, 120-B of IPC of Shankerpally police Station, Cyberabad and it is pending trail vide S.C.No.64 of 2019 of Hon'ble ASJ Court Chevella.

4. I submit that this office has issued a show cause notice dated 28.10.2023 for suppression of material information regarding pending of court cases. The petitioner has not given his reply/response till date."

6. Learned counsel appearing on behalf of respondents

placing reliance on the averments made in the counter affidavit

filed by the respondent No.2 contends that the petitioner instead

of submitting explanation to the show cause Notice dated

28.10.2023 has approached the Court challenging the order

passed by the 2nd respondent wherein it is stated that the

petitioner is involved in criminal cases, and adverse police report

had been received against the petitioner.

PERUSED THE RECORD.

7. This Court opines that the petitioner has to submit his

explanation to the show cause notice dated 28.10.2023 issued to

the petitioner by the 2nd respondent and the same has to be

considered by the 2nd respondent for consideration of petitioner's

application dated 26.08.2023 for issuance of fresh passport to

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the petitioner since pendency of criminal case against the

petitioner cannot be a ground to deny issuance of Passport to the

petitioner and the right to personal liberty of the petitioner would

include not only the petitioner's right to travel abroad but also

the petitioner's right to possess a Passport.

8. The Respondents cannot refuse the renewal of passport of

the petitioners 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 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.

9. 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 sentence for imprisonment for not

less than two years. Section 6.2(f) relates to a situation where

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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.

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."

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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:

"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

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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."

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

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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 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

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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."

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

pendency of criminal case 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 for

consideration of the application of the petitioner dated

26.08.2023 for issuance of passport to the petitioner. Thus, on

the ground of pendency of the above criminal case, passport

cannot be denied to the petitioner.

16. In view of the aforesaid discussion, this writ petition

is disposed of at the admission stage, directing the

petitioner to submit petitioner's explanation in response

to the show cause Notice dated 28.10.2023 issued by

respondent No.2 herein, within a period of two weeks

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from the date of receipt of copy of this order and upon the

petitioner submitting petitioner's reply to the show cause

notice dated 28.10.2023, the respondent No.2 shall

consider the same within a period of three (03) weeks

thereafter and pass appropriate orders on the application

of the petitioner dated 26.08.2023 seeking issuance of

passport vide file Number HY3065720517123 in

accordance to law duly reconsidering the 2nd respondents

decision dated 09.10.2023 vide proceedings Number

HY3065720517123 and duly taking into consideration the

view taken by the High Courts and Supreme Court in all

the Judgments referred to and extracted above without

reference to the pendency of the proceedings in S.C.

No.64 of 2019, subject to the following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in S.C.No.64 of 2019, pending on the file of Additional Sessions Judge, Chevella, stating that he will not leave India during pendency of the said S.C. without permission of the Court and that he will co-operate with trial Court in concluding the proceedings in the said S.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;

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

iv) The Respondent-Passport Officer shall consider the said application dated 26.08.2023 of the petitioner seeking issuance of passport facilities to the petitioner in the light of the observations made by this Court herein as well as the contents of the undertaking given by the petitioner for issuance of passport in accordance with law;

v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in S.C. No.64 of 2019; 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: 1st March, 2024 dgr