Yendrapalli Srinivasa Rao Vs The Union of India

THE REGIONAL PASSPORT OFFICER, OFFICE OF REGIONAL PASSPORT OFFICER 4TH FLOOR, STALIN CENTRAL, D. NO. 27-37-150, GOVERNOR PET, M.G. ROAD, VIJAYAWADA - 520002, ANDHRA PRADESH. [email protected]

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THE STATE OF ANDHRA PRADESH, REP BY ITS PRINCIPAL SECRETARY HOME DEPARTMENT, SECRETARIAT BUILDINGS, VELAGAPUDI, GUNTUR DISTRICT-522503.

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THE STATION HOUSE OFFICER, PATTABHIPURAM POLICE STATION GUNTUR URBAN, ANDHRA PRADESH-522006

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THE STATION HOUSE OFFICER, NAGARAMPALEM POLICE STATION GUNTUR URBAN, ANDHRA PRADESH-522004

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue Writ, order or direction more

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particularly one in the nature of Writ of Mandamus declaring the action of the 2^nd respondent in not processing the petitioners passport application bearing File No. VJ2076385635726 on the ground of a pending criminal case vide Crime No. 162/2013 before 4^th respondent as illegal, arbitrary, irrational, irregular, and in violation of the provisions of the Passports Act, 1967, and the Rules framed there under, as well as Articles 14, 19, and 21 of the Constitution of India, and contrary to the settled principles of natural justice. Consequently, direct the 2^nd respondent to process the petitioners passport application and issue the passport in accordance with law, within a time frame as may be fixed by this Honble Court and to pass such

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IA NO: 1 OF 2026

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant interim direction to direct the 2^nd respondent to process the petitioner’s passport application and issue the passport in accordance with law, within a time frame as may be fixed by this Hon’ble Court forth with pending disposal of the Writ Petition and pass such

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Counsel for the Petitioner:

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1.PONNEKANTI MALLIKARJUNA RAO

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Counsel for the Respondent(S):

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1.GP FOR HOME

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2.M MADAALASA CENTRAL GOVT COUNSEL

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The Court made the following Order:

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The present Writ Petition has been filed questioning the action of the respondent authorities in not processing the petitioner’s Passport application bearing No.VJ2076385635726.

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Case of the petitioner is that he made an online application bearing No.VJ2076385635726, seeking for issuance of passport. However, the application of the petitioner was not processed by the respondent authorities on the ground that a case in Crime No.162 of 2013 at Pattabhipuram Police Station is pending against him for the offence under Section 420 of IPC. Aggrieved by the non-consideration of his application, the petitioner has approached this Court.

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Learned Assistant Government Pleader for Home submitted that the case in Crime No.162 of 2013 of Pattabhipuram Police Station is at the stage of investigation.

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Perused the entire material available on record.

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A perusal of entire material on record goes to show

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that the petitioner herein was involved in Crime No.162 of 2013

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of Pattabhipuram Police Station, registered for the offence under Section 420 of IPC.

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It is the contention of learned counsel for Writ Petitioner that the Writ Petitioner was falsely implicated in Crime No.162 of 2013 and no other criminal proceedings are pending against the petitioner before any Court as on date.

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It is the specific contention of Writ Petitioner that the Writ Petitioner was falsely implicated as accused in the said case and that the Writ Petitioner is always available and would not flee away from justice. It is the specific case of the Writ Petitioner that pendency of criminal case against the Writ Petitioner should not lead to denial of passport facilities.

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Section 5 of the Passports Act, 1967 deals with application for obtaining a passport. Section 6 thereof deals with refusal of a passport. Section 6 (2) (f) of the Passports Act, 1967 contemplates that the passport issuing authority shall be bound to reject the application for issuance of a passport, if criminal proceedings are pending in any Court in India. The Ministry of External Affairs, Government of India issued a Notification vide

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GSR No.570(E), dated 25.08.1993. Relevant portion of GSR 570 (E) reads as follows:

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“In exercise of the powers conferred by Clause (a) of Section 22 of the Passports Act, 1967 (Act 15 of 1967) and in supersession of the Notification of the Government of India in the Ministry of External Affairs No.GSR 298(E) dated the 14^th April 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of Clause (f) of sub-section (2) of Section 6 of the said Act, subject to the following conditions, viz :- …”

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A plain reading of the aforesaid Notification would go to show that if any citizen of India intends to travel abroad when a criminal case is pending as against him before a criminal court in India, he has to produce orders from the Court concerned permitting him to depart from India exempting from the operation of provisions of clause (f) of sub-section (2) of Section 6 of the Passports Act, 1967.

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The Hon’ble Supreme Court in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation¹ held that

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1 2020 Crl.L.J. (SC) 572.

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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.

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Further, the Hon’ble Apex Court in Menaka Gandhi v. Union of India² 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. The relevant portion of the paragraph No.5 is extracted as under:

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“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

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2 1978 (1) SCC 248.

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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.

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Therefore, such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.”

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As regards pendency of Crime No.162 of 2013 of Pattabhipuram Police Station, this Court in Ganni Bhaskara Rao v. Union of India and another³ at paragraph Nos.4, 5 and 6, observed as under:

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“4. 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.

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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

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3 2023 (4) ALT 406 (AP).

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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

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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.

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Merely because the petitioner is an accused in a criminal case, it cannot disqualify him from holding or possessing a passport.

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12. Learned counsel for the Writ Petitioner submits that

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the Writ Petitioner would abide by the conditions imposed by this Court and present/ appear before the Court as and when required without fail. Right to travel abroad is a facet of personal liberty under Article 21 of the Constitution of India. The said right is a Fundamental Right and a citizen of the country cannot be deprived of his personal liberty or of his right to travel abroad.

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In view of the aforesaid facts and circumstances of the case, and duly considering the law laid down by the Hon’ble Supreme Court and this Court in various Judgments discussed in the preceding paragraphs, this Court exempts the petitioner from the operation of provisions of Clause (f) of sub-section (2) of Section 6 of the Passports Act, 1967 in terms of the Notification in

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G.S.R.No.570(E) issued by the Ministry of External Affairs, dated 25.08.1993 and directs the authority concerned to consider the request of the petitioner for issuance of passport to him.

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However, this order shall not preclude 4^th respondent- Station House Officer, Pattabhipuram Police Station, Guntur Urban from taking such steps as are necessary to ensure the presence of the petitioner, for conduct of the investigation of the aforesaid crime for any other purposes.

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