The Punjab and Haryana High Court has ruled that while granting bail, criminal courts cannot place the condition for the accused to surrender their passport.
Justice Daya Chaudhary asserted that while Section 104 of the Code of Criminal Procedure (CrPC) allows the court to impound any document or thing produced before it, the impounding of a passport can only be undertaken by the passport authority under Section 10(3) of the Passports Act.
The court explained, “The trial Court cannot impound a passport. 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 is 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.”
Justice Chaudhary added that 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.
The court was hearing a petition filed by one Capt. Anila Bhatia, challenging the condition in the order granting her anticipatory bail, that she should surrender/deposit her passport with the police or the court, and shall not leave India without prior permission of the trial court.
The petitioner, a Senior Captain with Air India Airlines, had submitted that being a pilot, she does not know in advance as to which country she will have to fly to, and had submitted that it would be extremely difficult for her to seek permission from the trial court every time she needed to fly out of the country.
Examining her contentions, the court pointed out that when a person is made to surrender their passport, it curtails their right of movement beyond the country. It then asserted that while Section 437 of the CrPC did give the concerned court discretionary powers to impose any condition necessary for granting bail, it did not mean that courts have general powers to impound passports, particularly in view of the special law contained in the Passports Act.
The court further observed that criminal courts cannot, mechanically, in every case, impose a condition for surrender of an accused person’s passport. It suggested that, if necessary, courts can direct the accused to execute a bond in case they want to go abroad for any purpose, for appropriate amount with sureties undertaking to appear before the Investigating Officer or court, as the case may be, as and when required to do so.
It also examined the difference between seizing of a document under Section 102(1) of the CrPC and impounding of a document. Asserting that the police may seize a passport under Section 102(1) but not impound it, the court explained,
“A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his/her possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document, the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document.”
The impugned condition was, therefore, set aside, granting liberty to the petitioner to file a specific application for release of her passport within two weeks. The trial court was directed to consider the application and return the passport without any further delay.
The petitioner was further directed to furnish an undertaking in writing before the trial court, specifying that she would seek prior permission for longer stay abroad other than during the normal course of her duties.