October 25, 2018
The Punjab and Haryana High Court has ruled that the criminal courts can't mandate surrender of passports as a condition for the grant of bail, including anticipatory bail.
The power to impound passports lies only with the Passport Authority under Section 10 (3) of the Passports Act, 1967. The Passports Act overrides the general law in the Code of Criminal Procedure (CrPC), 1973.
Even if the police seeks to retain the passport of a suspected offender, an application has to be made to the Passports Authority, which may then allow its impoundment after hearing the defence of the passport-holder.
While allowing the petition filed by a senior pilot in the Air Indian airlines, Anila Bhatia, Justice Daya Chaudhary passed an order to this effect earlier this month, .
The order states that,
“No doubt, Section 104 Criminal Procedure Code states that the Court may, if it thinks fit, impound any document or thing produced before it but this provision will only enable the Court to impound any document or thing other than a passport as impounding a “passport” is provided for in Section 10(3) of the Passports Act.
It's a settled law that the special law prevails over the general law. The Passports Act is a special law while the Criminal Procedure Code is a general law. Hence, impounding of a passport cannot be done by the Court under Section 104 Criminal Procedure Code though it can impound any other document or thing.”
Petitioner had preferred a plea for anticipatory bail before the Additional Sessions Court in a case where he stood accused of cheating and misappropriation. Among the various conditions imposed by the Additional Sessions judge while allowing his bail plea, was the mandatory surrender of his passport. As part of the same clause, Bhatia was directed to seek permission each time before he traveled abroad.
The condition in question was framed as follows, “… d) that, the applicants-accused shall surrender/deposit their passport, if any, with the police/court and shall not leave India without prior permission of the trial Court.“
Being a Pilot, this condition was particularly adverse for Bhatia, given that he was expected to leave the country on short notice as part of his professional duties. Therefore, he approached the HC praying that the above bail condition be lifted.
Justice Chaudhary made note that while granting bail, Section 437 of the CrPC did give the concerned court discretionary powers to impose any condition necessary in the interest of justice.
However, this general provision couldn't be interpreted to mean that courts have general powers to impound passports, particularly in view of the special law contained in the Passports Act.
Moreover, she also made note of the serious ramifications such restrictions would have on a person’s fundamental rights under Article 21 of the Constitution, more so given his prerogative to be viewed as innocent until proven guilty.
“The criminal courts have to take extreme care in imposing such condition. It can't mechanically, & in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution."
Even the police doesn't have powers to impound/retain passports, although they have certain powers to seize passports temporarily under Section 102 (1) of the CrPC, the High Court observed.
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