Telangana High Court

Rama Koteswara Rao Paruchuri vs Regional Passport Office on 4 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

          HON'BLE MRS JUSTICE SUREPALLI NANDA

                 WRIT PETITION No.2989 OF 2024

ORDER:

Heard Mr. Chetluru Sreenivas, learned counsel for

the petitioner and Mr.K.Aravind Kumar, learned

Standing Counsel for Central Government, appearing on

behalf of the respondents.

2. The petitioner has approached the Court seeking

the following relief:

"to issue a writ, order, or direction, more particularly one in the nature of a writ of Mandamus, directing the first respondent to renew the passport of the petitioner bearing No.Z2802891 without reference to the criminal appeal filed by the petitioner in the interest of justice by declaring the action of the respondent No.1 in not renewing the passport of the petitioner on the ground of pendency of criminal appeal filed by the petitioner, as legal, void, arbitrary and against the provisions of passport act and to pass such other order or orders as this Hon'ble Court may deems fit just and proper in the circumstances of the case."

PERUSED THE RECORD.

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

herein had applied for renewal of passport bearing

No.Z2802891 to the 1st respondent - Regional Passport

Officer, Hyderabad, without reference to the criminal case filed

against him. The respondent/passport authority issued Notice

vide letter reference No.SCN/316643103/23, dated

30.12.2023 calling upon the petitioner to provide a suitable

explanation within 30 days relating to the conviction of the

petitioner in F.I.R.No.7 of 2013 under Sections 120(B) IPC r/w

420, 468, 471 of IPC, Section 13(2) r/w 13(1)(d) of PC Act of

CBI Bangalore vide C.C.No.14 of 2015 on the file of Principal

Special Judge for CBI Cases, Hyderabad.

4. The petitioner submitted a detailed explanation dated

13.01.2024 to the notice issued by the respondent herein that

the petitioner obtained suspension of the conviction vide

orders of the Hon'ble High Court dated 16.09.2022 passed in

Crl.A.No.441 of 2022 and further requested the respondent

No.1 to issue passport facilities to the petitioner by duly

renewing petitioner's passport vide file No.

HYDO75926565523, dated 31.10.2023 contending that

pendency of a criminal case, conviction in the criminal case

and pendency of appeal etc., cannot be a ground to deny

issuance of passport facilities to the petitioner and cannot

deny the renewal of passport.

5. The petitioner brings on record the Written

instructions vide No.HYD/843/28(54)/POL/LC/2024

HYD 75926565523, dated 13.02.2024 and in particular

paragraph Nos.5 and 8 of the said Written instructions

reads as under:

"5. The petitioner has sent his response to the notice by post dated 16.01.2024 stating that there is a pending case in which he is convicted vide F.I.R.No.07 of 2013 in C.C.No.14/2015 on the file of Hon'ble Principal Special Judge for CBI Cases, Hyderabad, the petitioner has not enclosed any order of conviction or mentioned the conviction details of the case.

8. This office can reconsider his application, subject to submission of acquittal order from the case or permission to travel abroad from the same Hon'ble Court where the criminal case is still pending. In this regard, the Ministry of External Affairs Gazette Notification vide GSR-570 (E) dated 25.08.1993."

DISCUSSION AND CONCLUSION:

6. This court opines that pendency of criminal case against

the petitioner cannot be a ground to deny issuance of Passport

facilities to the petitioner since the right to personal liberty

would include not only the right to travel abroad but also the

right to possess or hold a Passport.

7. 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.

8. 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 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

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

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.

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 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.

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 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, 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.

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 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 facilities to the petitioner duly renewing

petitioner's passport. Thus, on the ground of pendency of the

above criminal case, renewal of passport cannot be denied to

the petitioners.

15. Taking into consideration the aforesaid facts and

circumstances of the case and in view of the aforesaid

discussion and duly considering the written instructions

in the present case (referred to and extracted above),

and duly considering the fact that the petitioner

submitted detailed explanation dated 13.01.2024 duly

enclosing the relevant copy of the order dated

16.09.2022 in Crl.A.No.441 of 2022, the writ petition is

disposed of at the admission stage directing the

respondent No.1 to consider the explanation dated

13.01.2024 furnished by the petitioner in response to

the notice dated 30.12.2023 issued to the petitioner by

the 1st respondent herein duly taking into consideration

the view taken by the Hon'ble High Courts and Hon'ble

Supreme Court in all the Judgments (referred to and

extracted above), and renew the passport of the

petitioner within three weeks from the date of receipt of

the copy of the order, without reference to the

pendency of the proceedings in C.C.No.14 of 2015 on

the file of the Hon'ble Principal Special Judge for CBI

Cases, Hyderabad vide F.I.R.No.7 of 2013, subject to the

following conditions:

i) The petitioner herein shall submit an undertaking

along with an affidavit in criminal case vide

C.C.No.14 of 2015 pending on the file of the

Hon'ble Principal Special Judge for CBI Cases,

Hyderabad vide F.I.R.No.7 of 2013, stating

that he will not leave India during pendency of the

said C.Cs. without permission of the Court and

that he will co-operate with trial Court in

concluding the proceedings in the said C.Cs.;