Khadar Abdul vs The Union Of India
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Telangana High Court

Khadar Abdul vs The Union Of India on 7 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS JUSTICE SUREPALLI NANDA


                WRIT PETITION No.6146 OF 2024
ORDER:

Heard Mr. Nambi Krishna, 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 issuance of passport vide online

application bearing No.HY106575277923 dated 07.09.2023 with

respondent No.2 along with all the requisite documents and fees

prescribed.

3. It is further the case of the petitioner that on 15.12.2023,

the respondent No.2 issued a letter vide reference

No.SCN/31649317/23, dated 15.12.2023 seeking clarification in

reference to petitioner's involvement in Cr.No.50/2021

registered under Section 324, 448 r/w Section 34 of IPC and

Cr.No.53 of 2021 registered under Section 326, 147-148 r/w

section 149 of IPC of Utkoor PS and police had filed charge sheet

vide C.C.No.178 of 2023 and the same is pending on the file of

Additional Judicial First Class Magistrate, Narayanpet District.

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The petitioner had submitted his detailed

explanation/clarification as sought for vide notice dated

15.12.2023 issued by the 2nd respondent and requested the 2nd

respondent to consider the explanation of the petitioner dated

15.12.2023 and the same was not considered by the respondent

No.2 on the ground that, the petitioner is accused in criminal

cases vide C.C. No.178 of 2023 pending on the file of file of

Additional Judicial First Class Magistrate, Narayanpet District.

Aggrieved by the same the petitioner herein approached the

Court by way of filing the present Writ Petition.

4. Learned counsel appearing on behalf of the petitioner

contends that petitioner herein is an accused in C.C. No.178 of

2023 pending on the file of Additional Judicial First Class

Magistrate, Narayanpet District. Therefore, the petitioner sought

to issue necessary directions to the respondent No.2 for

consideration of petitioner's application for issuance of passport.

The learned counsel for the petitioner further contends that,

respondents cannot refuse the issuance of passport facilities to

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.

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5. The learned Counsel representing Dy. Solicitor General of

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

that the writ petition may be disposed of directing the 2nd

respondent to consider the petitioner's explanation dated

29.02.2024, submitted by the petitioner in response to the

notice dated 15.12.2023 issued to the petitioner by the 2nd

respondent herein, within a reasonable period.

PERUSED THE RECORD.

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 and the right to personal liberty of the

petitioner would include not only the right to travel abroad but

also the right to possess a Passport.

7. It is relevant to note that the 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 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.

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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 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.

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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 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 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

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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

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

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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, 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 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

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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 issuance of

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passport. Further, the petitioner herein 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. Thus, on the ground of pendency of the above

criminal case, passport cannot be denied to the petitioner.

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

is disposed of at the admission stage, directing

respondent No.2 to consider the detailed explanation

submitted by the petitioner, dated 29.02.2024 seeking for

issuance of passport facilities submitted by the petitioner

in response to the Notice dated 15.12.2023 issued by the

2nd respondent, within a period of three(03) weeks from

the date of receipt of the copy of this order duly taking

into consideration the law laid down 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 C.C. No.178 of 2023, subject to the

following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in C.C. No.178 of 2023, pending on the Additional Judicial First Class

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Magistrate, Narayanpet District, stating that the petitioner 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-

Passport Officer for issuance of their passport;

iv) The Respondent-Passport Officer shall consider the application of the petitioner dated 07.09.2023 and petitioner's explanation dated 29.02.2024 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 to law;

v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in C.C. No.178 of 2023; 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.

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

writ petition shall also stand closed. There shall be no order as to

costs.

__________________________ MRS JUSTICE SUREPALLI NANDA

Date: 7th March, 2024

Note: Issue C.C. by Monday B/o: ksl.