MANU/KA/1108/2022

Equivalent/Neutral Citation: 2022(233)AIC 305, AIR2022Kant119, 2022(2) AKR 488, 2022(3)IC C 696, 2022(3)KarLJ523, 2022(2)KC C R1865,
2022:KHC :9069

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition No. 19203 of 2021 (GM-PASS)
Decided On: 17.03.2022
Kasturi Rajupeta Vs. Union of India and Ors.
Hon'ble Judges/Coram:
Dixit Krishna Shripad, J.
Counsels:
For Appellant/Petitioner/Plaintiff: C.V. Nagesh, Senior Counsel and Ajay Kadkol T.,
Advocate
For Respondents/Defendant: Shanthi Bhushan H., ASG
ORDER
Dixit Krishna Shripad, J.
1 . Petitioner-lady is knocking at the doors of writ Court seeking invalidation of the
Endorsement dated 06.09.2021 (Annexure-A) issued by the respondent-Regional
Passport Officer and for a direction to consider her application for renewal of the
passport, which has since expired. The Endorsement reads as under:
"To,
KASTURI RAJUPETA,
W/O SHIVAKUMAR REDDY CHENNAREDDY,
NO. 14, RAMANASHREE,
29TH MAIN, BTM LAYOUT, II STAGE,
BENGALURU - 560076.
KARNATAKA, INDIA.
Subject: Clarifications required regarding issuance of Passport facilities to
Shri/Smt./Kumari/Master KASTURI RAJUPETA.
This is in reference to your application for reissue, with file number
BN1073465217721 dated 22/7/2021.
You are requested to submit the final disposal order of the case that is pending
against you, to process your application for a full validity passport.
Alternatively, you may submit permission from the concerned Court for reissue
of passport/travel abroad. The validity of the passport so issued would be

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 subject to conditions mentioned in the court order as per gazette notification
GSR 570(E) : MANU/EXAF/0006/1993 dated 25/08/1993.
Please quote the reference number mentioned in the top block of this letter for
further correspondence."
2 . After service of notice, the respondents having entered appearance through the
learned ASG resist the writ petition by filing the Statement of Objections on 18.11.2021
principally contending that a criminal case is pending against the petitioner and
therefore she should obtain and produce a facilitative order at the hands of the learned
Judge of the said Court, so that her application for renewal of passport may be
favourably considered. So contending, learned ASG seeks dismissal of the writ petition.
3 . Having heard the learned counsel for the parties and having perused the petition
papers, this Court is inclined to grant indulgence in the matter as under and for the
following reasons:
(a) The Right to travel is an inviolable human right enshrined under Article 13
of the UNIVERSAL DECLERATION OF HUMAN RIGHTS. Under our Constitution,
the Right to travel abroad is held to be a facet of fundamental right to life &
liberty guaranteed under Article 21 vide MANEKA GANDHI VS. UNION OF INDIA
MANU/SC/0133/1978 : AIR 1978 SC 597. The Apex court relying on the opinion
of Justice William O. Douglas in the case of KENT V. DULLES 357 US 116
(1958) observed: "...Mr. Justice Douglas said in Kent v. Dulles that 'freedom of
movement across frontiers in either direction, and inside frontiers as well, was
a part of our heritage. Travel abroad like travel within the country, may be
necessary for livelihood. It may be as close to the heart of the individual as the
choice of what he eats, (1) MANU/SC/0006/1950 : [1950] S.C.R. 594 or wears,
or reads. Freedom of movement is basic in our Scheme of values.' And what the
learned Judge, said in regard to freedom of movement in his country holds
good in our country as well. Freedom of movement has been a part of our
ancient tradition which always upheld the dignity of man and saw in him the
embodiment of the Divine..."
(b) To go abroad, one needs Travel Documents namely, a Passport issued by
his native country and the Visa that may be issued by the host country. At this
juncture, it would be profitable to trace the historical and etymological origin of
the use and nature of passports. The word Passport is derived from a French
word, 'passer' (circa 15), literally meaning authorization to depart from the
port. The word Visa is derived from Latin 'videre' (mid 19th century), which
means 'to see', i.e., to see a place. The Madras High Court in V.G. ROW VS.
STATE OF MADRAS MANU/TN/0183/1954 : AIR 1954 Mad 240 has succinctly
traced the history of the passport at paragraph 11 as under:
"...11. Historically, the original meaning of the term "passport" appears
to have been different from the modern sense. It was evidently a rule
of common law in the 14th and 15th centuries in England that no
subject could leave the realm without a license or passport. This was
founded on the theory that by a person leaving the realm the King was
deprived of his service. This doctrine was apparently not universally
acknowledged, because according to Stephen's Commentaries on
Blackstone everyone at the common law was at liberty to leave the
realm without license. The 41st clause of the Magna Carta which

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 allowed all merchants to depart freely from England in time of peace
was really embodying an exception to the common law rule that no
person could leave the realm without a license or passport. As the
common law rule would not 'apply to aliens, it was found necessary to
pass statutes for the aliens not to leave the country without a passport'.
(38 Geo. III, C. 50, 43 Geo. III, c. 155)..."
N.W. SIBLEY, in his paper, "The Passport System." Journal of the Society of
Comparative Legislation, (1906) at page 26-33 wrote:
"...The case of R V. BRAILSFORD AND MCCULLOCH (supra), clearly
affords the most adequate, and apparently, the first, judicial definition
of a passport in the ordinary sense. Lord Alverstone, L.C.J., observed
that 'a passport is a document issued in the name of the sovereign, on
the responsibility of a Minister of the Crown to a named individual
intended to be presented to the governments of foreign nations, and to
be used for that individuals protection as a British subject in foreign
countries, and it depends for its validity upon the fact that the foreign
office, in an official document vouches the respectability of the person
named.". Passports have been known and recognized for three
centuries as official documents... Vattel observes: "Safe - conducts and
passports are a kind of privilege ensuring safety to persons in passing
and re-passing, or to certain things during their conveyance from one
place to another, From the usage and genius of the French Language, it
appears that the term 'passport' is used on ordinary occasions, when
speaking of persons who lie under no particular exception as to passing
and re-passing in safety, and to whom it is only granted for greater
security ..." (Driot des Gens, 1 iii. c. xvii. s. 265)..."
(b-i) With the above in mind, the present day use of passport in all civilized
jurisdictions may be summarized as: a passport is a document which, from its
nature and object, is addressed foreign powers; purporting only to be a request
that the bearer of it may pass safely and freely, and is to be considered rather
in the character of a political
*Page nos. 6, 7, 8 & 9 are retyped and replaced vide chamber order dated
21.03.2022.
document by which the bearer is recognized in foreign countries as an American
Citizen..." vide KENT V. DULLES, supra. Without passport, one cannot leave the
native soil. In the case of MANEKA GANDHI, supra while deliberating on the
right to travel abroad it has been said: "...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 tight 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..." Ordinarily, the consideration for the
grant of passport varies a bit from the considerations that govern its renewal.
In the former, quantum of compliance and the level of scrutiny are

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 comparatively higher. However, there are circumstances in which law treats an
application for renewal of passport as
*Page nos. 6, 7, 8 & 9 are retyped and replaced vide chamber order dated
21.03.2022.
the one for fresh issuance. Arguably, case of the petitioner falls into this
category. Be that as it may.
(c) The impugned Endorsement is structured on the ground that a criminal case
is pending inter alia against the petitioner in C.C. No. 11606/2020, in the Court
of learned XVII ACMM, Bengaluru City. The same having been challenged in
W.P. No. 14431/2020, a Co-ordinate Bench of this Court has stayed all further
proceedings before the Trial judge vide interim order dated 10.12.2020, is not
in dispute. That being the position, the respondent-RPO is not justified in
asking the petitioner to go to the learned Trial Judge to seek permission to
travel aboard in the 'stayed proceedings'. The Notification dated 25.08.1993
purportedly issued under Section 22 of the Act, normally expects an order of
the kind and this norm is applicable in ordinary circumstances, in the sense that
the criminal proceedings are not stayed and hands of the Trial Judge are free to
work, and not in the circumstances that have tied his hands. A contention to the
contrary amounts to asking the citizen to do an impossible act. Ordinarily, an
act impossible of performance is treated as either having been accomplished or
waived vide lex non cogit ad impossibilia which Maxwell on Interpretation of
Statutes,
*Page nos. 6, 7, 8 & 9 are retyped and replaced vide chamber order dated
21.03.2022.
12th Edition, Butterworths Wadhwa at pages 326 to 328 extensively discusses.
Thus, the insistence on production of an order as mentioned in the impugned
Endorsement is not justified.
(d) The subject 1993 Notification "...exempts persons 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 ...". Thus, it stipulates
that the accused seeking issuance of a passport or its renewal has to obtain an
order at the hands of the criminal Court concerned permitting him to travel to a
foreign land. However, this Notification has to be construed consistent with the
Fundamental Right of a person to travel abroad and of possibility of its
invocation, as discussed above. When all further proceedings in the criminal
case are interdicted by a higher Court, this Notification cannot be pressed into
service to deny petitioner's request for renewal/re-issuance of passport, only on
the ground that a criminal case is pending. What is to be seen is the intent,
content & invocability of the Notification. Otherwise, it amounts to burying the
spirit of law by operating its black letter.
*Page nos. 6, 7, 8 & 9 are retyped and replaced vide chamber order dated
21.03.2022.
(e) The vehement contention of learned ASG that a criminal case is pending
against the petitioner even when the proceedings are stayed cannot be much
disputed. The Apex Court in CHAMUNDI MOPEDS VS. CHURCH OF SOUTH INDIA
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 TRUST MANU/SC/0501/1992 : 1992 (3) SCC 1, has maintained the difference
between an 'order stayed' and an 'order quashed'. As long as proceedings are
not quashed, so long they can be stated to be pending, going by the logic of
this decision. Merely because a criminal proceeding is said to be pending, the
obtainment of permission from the Court concerned does not become
imperative regardless of the circumstances. As already mentioned above
criminal proceedings are pending, notwithstanding there being a stay, which
has put them in suspended animation. The submission of learned Sr. Advocate
appearing for the petitioner that till the presence of the accused after issuance
of notice post cognizance stage, proceedings cannot be said to be pending, is
bit difficult to countenance. Such an articulated position cannot be drawn from
what has been observed by two Co-ordinate Benches in W.P. Nos. 35255-
57/1997 between DR. C.D. JOHN & OTHERS VS. UNION OF INDIA OTHERS &
disposed off on 09.07.1998 and also in W.P. No. 8958/2000 (GM-PASS)
between B. KRISHNA BHAT VS. UNION OF INDIA & OTHERS disposed off on
25.10.2002. The concept of pendency of proceedings as stated in Black's Law
Dictionary does not much come to assistance since law is not slave of the
dictionary. The legal concepts again do not have fixed contours. Their true
meaning & scope depend upon the scheme of the statute in which they are
employed, as rightly submitted by learned ASG. Therefore the provisions of
Section 6(2)(f) employing the expression "proceedings ... are pending before a
criminal court" have to be liberally construed keeping in view other specific
scenario mentioned in the companion clauses of the said sub-section. That
having been said, this court hastens to add that the observations made by a Co-
ordinate Bench in its interim order in petitioner's W.P. No. 14431/2020 about
furnishment of her travel itinerary itself can be construed as the permission
contemplated under the 1993 Notification. There is no need for one more order
at the hands of Trial Magistrate more particularly when no specific format is
legally prescribed.
(f) Viewed from the above perspective, an eminent case of refusal to exercise
jurisdiction has been made out warranting interference of this court. This is
strengthened by the opinion that how long it would take for the pending writ
petition to see its destination point is not possible to say, regard being had to
enormous pendency of cases and paucity of working hands. Courts are meant
for doing a real justice to the causes brought before them and they cannot turn
away the aggrieved parties by quoting some constitutional theories, when
justice is apparently due to them.
In the above circumstances, this petition succeeds. A Writ of Certiorari issues quashing
the impugned Endorsement. A Writ of Mandamus issues to the 3rd respondent-Regional
Passport Officer to consider petitioner's subject application in light of the observations
hereinabove made and without insisting upon any order from the Criminal Court
concerned. Time for compliance is six weeks.
However, justice of the case warrants a stipulation by this Court that petitioner shall not
travel abroad without leave of the Criminal Court concerned, regardless of she being
issued or not issued the passport.
This court places on record its deep appreciation for the able assistance rendered by the
Law Clerk cum Research Assistant, Mr. Faiz Afsar Sait.
Now, no costs.

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