Allowed

Orsu Thirupathayya v. The Union of India

Telangana HC6 Dec 2023WP/33035/2023

Case brief

AI extract

What is this about?

The High Court held that constable pending criminal cases does not justify refusal of a passport. Relying on Supreme Court precedents, the Court opined that the right to travel is a fundamental right unless the applicant is convicted. The Court directed the Passport Authority to issue the passport after the petitioner submits an undertaking to appear in court and deposit the passport.

What did the court decide?

Directing the Passport Authority to issue the passport within three weeks following the submission of an undertaking to the Trial Court and filing a fresh application.

Orsu Thirupathayya Vs The Union of… — Constitutional and Fundamental Rights | Telangana HC (2023)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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WEDNESDAY, THE SIXTH DAY OF DECEIVIBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE MRS JUSTICE SUREPALLI NANDA

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WRIT PETITION No: 33035 QE-2Q23

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Between:

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Orsu Thirupathayya, S/o. Ivlallaiah, Aged 55 Yrs, Occ: Business, Rl/o. H.No,4137, Vaddara Colony, Near Government Degree College, Narsampet, Warangal District-5061 32

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...PETITIONER

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AND

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The Union of lndia, Ministry of External^{Affairs Representedby its Principal} Secretary, South Block, New^{Delhi-110001.}

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The Pas6port Authority of lndia, Represented^{by its Chief Passport Officer,} PSP Dividion, Ministryof External^{Affairs, Room No 8, Patiala House, Tilak} Marg, New Delhi - 1'10001^.

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TheRegional Passport Office,^{Hyderabad Rep by Regional Passport Officer,} Department of External Affairs,^{Government of lndia}

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...RESPONDENTS

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peiltion under Article 226 of the Constitution of lndia praying that in the circumstances stated in the^{affidavit filed therewith,the High Court maybe} pleased to issue a writ, order or direction,^{more particularlyone in the nature of} writ of Mandamus in declaring the^{action of the Respondent No.3 in not disposing} off the Petitioner application^{vide., File No.HY75C5046128123Dt.261O512023fot} fresh passport application as^{illegal, arbitrary and violation of Article 14 and 21 of} Constitution of lndia consequentially^{direct the Respondent No.3 to considerthe} Petitioner Explanation^{(undertaking), dated.25.o7.2023 in terms of the office} Memorandum No.Vl/401/1/5/2019,^{dated.lO11012019 issue ofpassportsto} applicants against whom criminal^{casesare pending before courtof law in lndia.}

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lA NO: 1 OF 2023

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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 direct the Respondent No.3 to consider the Petitioner Explanation^{(undertaking),} dated.25lO7l2O23 in terms of the Office Memorandum No.Vl/401/1/5/20'19, dated.10l10l2O'19 issue of^passports to applicants against whom criminal cases are pending before court of law in lndia and issue fresh^passport to the^petitioner.

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Counsel for the Petitioner: SRI VEERA^BABUGANDU Counsel for the Respondents: Ms. N.V.R.RAJYA^{LAKSHMI FOR} SRI GADI PRAVEEN KUMAR, Dy. SOLICITOR^GEN. OF^INDIA

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The Court made the following: ORDER

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HON'BLE MRS SUREPALLI NANDA 'USTICE

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WRIT PETITION o.33O35 of 2023

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ORDER

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Heard Mr.Veera Babu Gandu learned counsel appearing on behalf of the petitioner and Mrs.N.V.R.Rajya Lakshmi, learned counsel representing Mr.Gadi Praveen Kumar, learned Deputy Solicitor General of India, appearing on behalf of the respondents.

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2. The prayer as sought for by the petationer in the present writ petition reads as under:

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"To issue an order, writ or direction more particularly one in nature of writ of MANDUMUS declaring the action of the Respondent No.3 in^not disposing off the Petitioner applicatlon vide.,^File No.HY75C5046128723 Dt.26-05-2O23 for fresh passport application as illegal, arbitrary and violation of Article 14 & 21 of Constitution of India consequentially direct the Respondent No.3 to consider the^Petitioner Explanation (undertaking), dated. 25.O7.2023^{in terms} of the Office Memorandum No. vU4OL/l/5/2019,^dated 10.10.2019 issue of passports to applicants^against whom criminal cases are pending before court of^{law in} India. "

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The case of the oetitioner in brief:

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The petitioner has submitted an application^{for issuance} of passport vide application^{No.HY75C5046128123 dated} 26.O5.2023 to travel abroad for^{visiting purpose'The}

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SNJ WP.33035 of 2023

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respondents are not issuing passport on the ground of pendency of criminal cases against the petitioner.

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P ED TH R co D

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A perusal of the record would reveal that the petitioner is arrayed as accused in Crime Nos.202 of 2013, 315 of 2015, 135 of 2021,331 of 2021 and I79 of 20t4. After completion of investigation, the Investigating Officer had filed charge sheets and the same were taken on file vide C.C.Nos.421 of 2014 and 703 of 2015, S.T.C.No.19 of 2021 and C.C.No.213 of 2022, pending on the file of Judicial First Class Magistrate Court at Narsampet, Warangal District and S.C.No. 134 of 2017 pending on the file of III Addttional Senior Civil Judge Narsampet, Warangal District.

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Learned counsel appearing for the petitioner would submit thar due to lack of knowledge the petitioner has not mentioned about pendency oF the aforesaid crimina r proceedings against him in the apprication dated 26.05.2023. It is neither willful nor wanton. He would further submit that the petitioner was falsely implicated in the aforesaid cases. Further, the petitioner is ready to co_operate with the trial. Therefore, the petitioner sought to issue necessary directions

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SNJ WPJ3035 of 2021

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to the respondents for consideration of his application to issue passport.

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This Court opines that Respondent No.2 cannot deny issuance of Passport on the ground that aforesaid Criminal Cases are pending against him. It is also relevant to note that the Apex Court in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigationl had an occasion to examine the provisions of the Passports Act,^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^(t) relates to a situation where the applicant is facing trial^{in a} criminal Court. The^petitioner therein was^{convictedin a case} for the offences under Sections - 42O,468,471 and^477A read with 1208 of the 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 samewas} dismissed. The sentence^{was reduced to a period of one (01)} year. The petitioner therein had approached^{the Apex Court}

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2020 Crl.L.J. (SC) 572

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SNJ WP.33035 of2023

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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 issuance 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 case.

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The Apex Court in the judgment reported in 2013

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(15) SCC page 570 in Sumit Mehta v. State of NCT of Delhi at para 13 observed as under:

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"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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The Apex Court in Menaka Gandhi Vs. Union of India and another reported in AfR 197g SC 597, and in Satish Chandra Verma v. Union of India (UOI) and others reported in 2O19 (2) SCC Ontine SC 2O48 very clearly observed that the right to travel abroad is a part of a personal liberty an the r ht to oossess a Dass ort c n cur ile a an wt h w nl n s tve ati acti of ne. The procedure must atso be just, fair and reasonable.

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SN"' WP.3l0l5 of:0!J

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In the^judgment dated 08.04.2022 of the Andhra Pradesh High Court reported in 2O23 (4) ALT 406 (AP) in Ganni Bhaskara Rao v. 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 the Hon'ble Supreme Court of India, in Criminal Appeal No.1342 ol 2OL7, was dealing with a person, who was convicted by the Court and his appeal is pending for decision in the Supreme Court. The conviction was however stayed. Int hose rcu mstan ces also it was held +lrrf tha ss thori^{h,,^t'lh^+} refuse Gha "renewal" of the oassoort,

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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 er r "hold" or possess a passport. I urr s rtr^r rdarrce nrs med in n^l- unless he rs Drov nou iltv T erefore the mere, fact t ata crt mrn lc asel SD nd lno aoatn st the n nd to e nn Dossess or hold a^{passport.Even} under^{Section 1(,} f h P rts can nded if the rha nco n ff rnvo v "mo r itu "t rrsonm n ofn tha ea 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 thas is^the ua ost-c vt n of Cou theoe ndencv^o fa case. I cases ts n ota e or to emand the qround to refu se. f newal surren der of a oa Dort.

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This Court duly taking into^{considerationthe law laid} down in the various ludgments^{(referred to and extracted}

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SNJ lYP.J30J5 of202l

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above) opines that respondent No.2 cannot deny renewal of passport to the petitioner. There is no provision in the Passports Act or Rules/Regulations which stipulates that passport cannot be granted, or renewed or reissued on the ground of pendency of criminal case.

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In view of the aforesaid discussion, this writ petition is disposed of directing the respondent No.2 to consider the application No. HY7SC5O46128123 dated 26.05.2023 submitted by the petitioner seeking to issue passport on the following conditions:-

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i) The petitioner shafl submit an undertaking along with an affidavit in C.C.Nos.4Zl ol 2O14 and 7O3 of 2OtS, S.T.C.No.19 ot 2O2t and C.C.NO.2I3 ot 2022, pending on the file of Judicial First Class Magistrate Court at Narsampet, Warangal District and S.C.No.134 of 2OLZ on the fite of III Additional Senior Civil Judge Narsampet, Warangal District, stating that he shatt not leave Indaa during pendency of the said Cases without permission of the Court and that he shall co-operate wath the trial of the said cases.

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ii) On filing such an undertaking as wefl as affidavit, the trial Court sha tt issue a certified

SNJ WPJlOS5 of20!3

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copy of the same within two (02) weeks there from;

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iii) The petitioner shall submit an application afresh along with certified copy of this order as well as the aforesaid undertaking before the Passport Officer/ Authority concerned for issuance of passport;

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iv) On filing such an application, the Passport Officer/Authority shall consider the same afresh 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 with law, within three (O3) weeks from the date of said application;

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v) Respondent No.2 shall consider Rule 12 of the Passport Rules, 1967 while considering the aforesaid application submitted by the petitioner.

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vi) On issuance of the Passport, the petitioner shall deposit the same before the learned Judicial First Class Magastrate^' Court at Narsampet, Warangal Distract, and

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vii) However, liberty is^granted to^{the petitioner} to fite an application^{before thelearned} Judicial First Class^{MagistrateCourtat} Narsampet, Warangal^{District,seeking} permission to travel abroad, and it^is for^the

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SNJ \1'P.3J0-1-5 of201l

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learned Magastrate to consider the same in accordance with law.

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L2. With these observations, the Writ petition is disposed of.

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However, in the circumstances of the case, there shall be no

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order as to costs.

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

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in the Writ Petition shall also stand closed.

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SD/-N. SRIHARI ASSISTANTEEGISTRAR

//TRUE COPY//

SEcTIJ(oFFIcER

The Principal Secretary, Union of lndia, Ministry of Extemal Affairs South Block, New Delhi-1 10001 .

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The Chief Passport Officer, Passport Authority of lndia, PSP Division, Ministry of External Affairs, Room No 8, Patiala House, Tilak Marg, New Delhi^- 1 10001 .

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