Telangana High Court

Maruthi Balasani vs The Union Of India on 7 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

           HON'BLE MRS JUSTICE SUREPALLI NANDA


                  WRIT PETITION No.6161 OF 2024
ORDER:

Heard Mr. Ch. Koteshwar Rao, learned counsel for

the petitioner and Mrs.NVR. Rajyalaxmi, learned counsel

representing Dy. Solicitor General of India, 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 passport in the year 2011 and the same

was issued by the Competent authority vide passport

No.J28242284 which was valid up to 06.01.2021. On 19.08.2023

the petitioner applied for renewal of passport vide online

application bearing No.HY7075696695723 dated 19.08.2023 of

said passport bearing No.J284224 to the 2nd respondent -

Regional Passport Officer, Secunderabad, along with all the

requisite documents and fees prescribed, with a request to

renew the passport.

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

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

issued letter vide reference No.OBJ/316962719/24 dated

03.02.2024 calling upon the petitioner to furnish certain

clarifications for renewal of passport facilities pertaining to

petitioner's involvement in crime No.58 of 2023 registered under

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section 294-b, 506 of IPC of PS Medipalli vide C.C.No.214 of

2023, in response to the petitioner's application for renewal of

passport vide application bearing No. HY7075696695723 dated

19.08.2023. Aggrieved by the Notice dated 03.02.2024 the

petitioner approached the Court by way of filing the present Writ

petition. Hence, the Petition.

3. It is contended by 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.214 of 2023 pending on the

file of Judicial Magistrate of First Class at Korutla, 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

respondents for consideration of the petitioner's application for

renewal of passport.

4. The learned Standing Counsel appearing on behalf of

respondent No.2/passport authority submits that the

petitioner instead of furnishing his explanation to the

Notice vide reference No. OBJ/316962719/24 dated

03.02.2024, the petitioner approached this Court by filing

the present Writ petition.

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PERUSED THE RECORD.

5. 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. HY7075696695723 dated 19.08.2023 for renewal of

passport bearing No. J284224 since the right to

petitioner's personal liberty would include not only the

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

right to possess a Passport.

6. 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 in

Vangala Kasturi Rangacharyulu v. Central Bureau of

Investigation 1.

7. 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

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

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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 relating to the pendency of

the aforesaid criminal appeal in S.C.

8. 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

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all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution of India."

9. 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.

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10. 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."

11. 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.

12. 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:

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"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

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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.

13. 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 renewal of

passport. Thus, on the ground of pendency of the above

criminal case, passport cannot be denied to the petitioner.

14. Taking into consideration the fact as borne on record

that, the petitioner did not furnish any

explanation/clarifications as sought for by the 2nd

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respondent passport authority, vide its notice dated

03.02.2024, 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 notice, dated 03.02.2024 issued by the 2nd

respondent to the petitioner and upon receipt of the same

the 2nd 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 19.08.2023 seeking to

renew petitioner's passport bearing No.J2842284 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 criminal case vide C.C.No.214 of 2023

on the file of Judicial Magistrate of First Class at Korutla,

subject to the following conditions:

i) The petitioner herein shall submit an undertaking

along with an affidavit in criminal case vide

C.C.No.214 of 2023 on the file of Judicial Magistrate

of First Class at Korutla, 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

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with trial Court in concluding the proceedings in the

said C.C.;