Kura Narender Reddy vs The Union Of India
2024 Latest Caselaw 941 Tel

Telangana High Court

Kura Narender Reddy vs The Union Of India on 6 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA


             WRIT PETITION No.6014 OF 2024
ORDER:

Heard Mr. Vadlakonda Ravi Kumar Reddy, learned

counsel appearing on behalf of the petitioner, Mr.

Devender, learned counsel representing Mr. Gadi

Praveen Kumar, learned Deputy Solicitor General of

India, appearing on behalf of respondent Nos.1 and 2

and learned Asst. Government Pleader for Home

appearing on behalf of respondent No.3.

2. The petitioner approached the Court seeking

prayer as under:

"... to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of MANDAMUS declaring the action of the respondents 1 and 2 in impugned letter dated 12-02-2024 refusing the petitioner's application vide File No. HY7065763280123 dated 08-09-2023 as illegal, arbitrary and violative of Articles of 14 and 21 of Constitution of India besides violative of principles of natural justice and set aside the same and consequently to direct the respondents 1 and 2 to issue passport to the petitioner without reference to pendency of C.C.No.4558 of 2022 pending on the file of the court of the Judicial First Class Magistrate at

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Bhupalapalli and to pass such other orders as may deem fit and proper in the circumstances of the case".

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

petitioner was issued notice dated 14.12.2023 by the 2nd

respondent herein calling upon the petitioner to furnish

certain clarifications regarding the issuance of passport

facilities to the petitioner and petitioner's involvement in

Crime No.141 of 2017 for the offences under Sections 290,

324 r/w Sec. 34 of IPC on the file of Bhupalpally P.S and the

petitioner in response to the said legal notice dated

14.12.2023 issued by the 2nd respondent herein submitted

detailed explanation in the month of January, 2024.

However, without considering the explanation furnished by

the petitioner in January, 2024 to the notice dated

14.12.2023 issued by the 2nd respondent to the petitioner the

2nd respondent proceeded and passed the impugned order

dated 12.02.2024 vide reference No.HY7065763280123 and a

bare perusal of the same indicates that the 2nd respondent

issued impugned order dated 12.02.2024 stating that it has

been decided by the competent authority to refuse passport

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services to the petitioner under Section 5 (2)(c) of the

Passports Act, 1967 to be read with Section 6 (2)(f) in view of

the pendency of the criminal case registered against the

petitioner in Cr.No. 141/2017 under Sections 290, 324 r/w 34

IPC of Bhupapally PS, the case is P.T vide CC. No. 4558/2022

(Old CC No. 308/2018, JFCM Court, Parkala) in the JFCM

Court, Parkala.

PERUSED THE RECORD.

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 would include not only the

right to travel abroad but also the right to possess or

hold a Passport.

5. 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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6. 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 affected 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.

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7. 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."

8. 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.

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9. 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.

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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."

10. It is relevant to note that the Apex Court in

Vangala Kasturi Rangacharyulu case (cited supra) had

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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. Thus, the

Apex Court directed the Passport Authority to issue the

passport of the applicant without raising the objection

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relating to the pendency of the aforesaid criminal

appeal in S.C.

11. Taking into consideration the aforesaid facts and

circumstances and duly considering the law laid down

by the Apex Court and other High Courts in various

judgments referred to and extracted above, and on

perusal of the order impugned dated 12.02.2024 of the

2nd respondent it is evident that 2nd respondent did not

consider the explanation furnished by the petitioner in

January, 2024 to the notice dated 14.12.2023 issued to

the petitioner and passed the order impugned dated

12.02.2024 mechanically without application of mind

without considering petitioner explanation submitted in

January, 2024 to the notice dated 14.12.2023 issued to

the petitioner by the 2nd respondent herein without any

reference to the explanation nor any discussion of the

explanation furnished by the petitioner and therefore,

the order impugned dated 12.02.2024 issued by the 2nd

respondent is set aside and the 2nd respondent is

directed to re-consider the explanation furnished by the

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petitioner in January, 2024 in response to the notice

dated 14.12.2023 issued to the petitioner by the 2nd

respondent, in accordance to law, duly taking into

consideration the law laid down by the Apex Court and

other High Courts in the various judgments (referred to

and extracted above), and pass appropriate orders on

petitioner's application vide file No.HY7065763280123,

dated 08.09.2023 seeking issuance of passport

facilities to the petitioner, within a period of three (03)

weeks from the date of receipt of a copy of the order

subject to the following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in Crime No.141 of 2017 of Bhupalpally P.S., vide CC No. 4558 of 2022 (old C.C. No.308/2018) on the file of Judl. First Class Magistrate, Bhupalapalli 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.Cs.;

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 application of the petitioner dated 08.09.2023 and petitioner's explanation in the month of January, 2024 in response to the notice dated 14.12.2023 issued to the petitioner by the 2nd respondent 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 his passport in accordance to law;

v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in CC No. 4558 of 2022 (old C.C. No.308/2018) on the file of Judl. First Class Magistrate, Bhupalapalli, 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 to law.

However, in the circumstances of the case, there shall

be no order as to costs.

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

the writ petition shall also stand closed.

___________________________ MRS JUSTICE SUREPALLI NANDA

Date: 6th, March, 2024

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