Mr. Suneet Kankani vs Union Of India
2024 Latest Caselaw 927 Tel

Telangana High Court

Mr. Suneet Kankani vs Union Of India on 5 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

           WRIT PETITION No.29799 OF 2023

ORDER:

Heard Mr. Damodar Mundra, learned counsel for

the petitioner, Mr. Gadi Praveen Kumar, learned Deputy

Solicitor General of India appearing on behalf of

respondent No.1 and Smt.T. Suhasini, learned counsel

appearing on behalf of respondent No.2.

2. The petitioner approached this Court with the

following prayer:

" ...to issue writ of Mandamus or any other proper writ or other order or direction declaring that the act of Respondent No.2 in refusing to renew the passport of the petitioner vide Passport No H9803108 on the guise of pendency of C.C. No.7789/2020 against the petitioner on the file of Honorable VII Additional Chief Metropolitan Magistrate, Nampally at Hyderabad is illegal arbitrary and contrary to law thereby directing the Respondent No.2 to renew the Passport of Petitioners Application vide File No HY1074221918722 dated 18.05.2023 and pass

such other and further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

PERUSED THE RECORD

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

application dated 18.05.2023 the petitioner made a request

for renewal of petitioner passport No.H9803108 but the 2nd

respondent issued letter dated 03.10.2023 stating that it has

been decided by the competent authority to refuse the

passport services to the petitioner under Section 5 (2)(C) of

the Passports Act, 1967 r/w. Section 6 (2) (f) in view of the

pendency of C.C. No. 7789 of 2020 for the offences under

Sections 323, 34, 504, 509 of Indian Penal Code pending

against the petitioner before the Chief Metropolitan

Magistrate, Hyderabad. Aggrieved by the same, the petitioner

approached this Court by filing the present writ petition.

4. 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 the

right to personal liberty of the petitioner would include

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

right to possess or hold his Passport.

5. It is also relevant to note that the 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 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.

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

Vangala Kasturi Rangacharyulu case (cited 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 applicatio0n

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. 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.

7. The Apex Court in 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."

8. 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.

9. 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 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."

10. 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.

11. 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."

12. Taking into consideration the facts and

circumstances of the case and also duly considering the

law laid down by the Apex Court and other High Courts

in the judgments referred to and extracted above the

writ petition is disposed of directing the 2nd respondent

to reconsider the passport application vide File No.

HY1074221918722 dated 18.05.2023 of the petitioner

seeking renewal of passport bearing No.H9803108, in

accordance to law, duly taking into consideration the

law laid down by the Apex Court and other High Courts

in the judgments referred to and extracted above and

pass appropriate orders on petitioner's passport

application dated 18.05.2023 seeking renewal of

passport bearing No. HY1074221918722 within a

period of four (04) weeks from the date of receipt of a

copy of the order, without referring to the pendency of

the C.C. No. 7789 of 2020 subject to the following

conditions:.

i) The petitioner herein shall submit an undertaking along with an affidavit in C.C.No.7789 of 2020, pending on the file of Chief Metropolitan Magistrate, Hyderabad 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 No.2 Passport Officer for renewal of his passport;

iv) The Respondent No.2-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 petitioner for renewal of his passport in accordance with law;

v) On renewal of the Passport, the petitioner herein shall deposit the original renewed Passport before the trial Court in C.C.No.7789 of 2020; 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 thewrit petition shall also stand closed.

__________________________ MRS JUSTICE SUREPALLI NANDA

Date: 05th, March, 2024

Note C.C. in two days.

(B/o) Skj