'Passport Authority Cannot Retain Passport Without Impounding' : Supreme Court Grants Relief To Husband In Matrimonial Dispute

The Supreme Court on Monday held that without impounding of the passport, the Passport Authority cannot unauthorizedly retain a passport handed over by the Police in the name of a pending criminal case. 

A division bench of Justice Abhay S Oka and Justice Rajesh Bindal was considering an appeal filed by a husband whose passport was handed over to the Passport Authority by the Police as he was being prosecuted for offences under Sections 498-A, 403 and 406 of the Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961 in a complaint filed by his wife.

The Court held that the direction issued by the police under Section 91 CrPC to the husband to submit his passport was illegal. It also held the decision of the passport authorities to retain the document as illegal.

“We fail to understand why the passport of the appellant was required for the purpose of the pending criminal case. Therefore, the exercise(of the police) of calling upon the appellant to submit his passport was not legal. Thereafter, the passport was never impounded in exercise of power under Section 10 of PP Act. There is nothing on record to show that the passport was seized under Section 102 of Cr.P.C. As there was neither a seizure of the passport nor impounding thereof, the appellant was entitled to return of the passport.”

The husband who is working in the US, was visiting India for his father’s death anniversary, when his wife filed the complaint against him. The Police issued a notice under Section 91 CrPC to the husband to produce the passport. After taking custody of his passport, the police handed it over to the Passport Authority. It was alleged by the wife, that he was in possession of her passport. The Passport Authority asked him to return his wife’s passport.

The husband then approached the Additional Chief Metropolitan Magistrate for return of his passport, which was dismissed. He later approached the Andhra Pradesh High Court, which directed the passport authority to return his passport on the condition that 1) he deposit a sum of ₹10 lakhs by way of a Fixed Deposit Receipt in the name of his wife and that 2) he submit the original passports of wife and his minor son.

The husband applied for modification of the order of the High Court directing him to return the passport of his son, a US citizen and his wife. The contention of the husband was that the passport of his son was lost in July 2021 and that he had complied with the necessary procedure to get a new passport issued. He also contended that he was not in possession of his wife’s passport. However, the husband agreed to comply with the condition requiring him to deposit Rs. 10 lakhs by way of Fixed Deposit in the name of his wife. The High Court dismissed the modification application filed by the husband, following which he approached the Supreme Court.

Arguments in Supreme Court

The counsel for the husband argued that there is no power vesting in the Police to impound a passport relying on the decision of the Apex Court in Suresh Nanda v. Central Bureau of Investigation (2008) 3 SCC 674. The Additional Solicitor General appearing for the Regional Passport Office accepted that there was no order impounding of the husband’s passport in accordance with Section 10 (3) of the PP Act. The counsel for the wife submitted that the stand of the husband that her passport was never with him, is false and hence the High Court was justified in issuing such an order. 

The Top Court while relying on the decision in Suresh Nanda observed that it is for the passport authority to impound the passport, not the police:

"In the said decision, it was held that the power under Section 104 of Cr.P.C. cannot be invoked to impound a passport. The reason is that the provisions of the PP Act which deal with the specific subject of impounding passports shall prevail over Section 104 of Cr.P.C. Moreover, it was held that under Section 102 (1) of Cr.P.C., the Police have the power to seize the passport but there is no power to impound the same. It was held that even if the power of seizure of a passport is exercised under Section 102, the Police cannot withhold the said document and the same must be forwarded to the Passport Authority. It is, thereafter, for the Passport Authority to decide whether the passport needs to be impounded.”

The Apex Court observed that, it has been accepted that the Police took custody of the husband’s passport under Section 91 of Cr.P.C. and handed it over to the passport authority. The Court observed that as there was no seizure or impounding of the passport, it was unauthorisedly retained by the passport authority. The Court also held that the direction of the High Court to return the passports of his wife and son had no legal basis.

The Apex Court observed that, as the act of retaining the husband's passport was illegal, imposing the condition that he return his wife's passport, was also not proper in law:

“The direction to return the passports of his wife and son as a condition for the release of the appellant’s passport was completely illegal. As regards the passport of the son, it is taken care of as the appellant has followed the prescribed procedure in USA regarding lost passports. The condition of returning the passport of the 4th respondent (wife) could not have been imposed at all as the act of the Passport Officer of retaining the appellant’s passport was completely illegal. Therefore, the said respondent can make an application in a prescribed form to the competent regional officer for the reissue of the passport. If the validity of the passport has expired and the period provided for renewal thereof has expired, she can apply for a fresh passport. If the 4th respondent wants some documents from the appellant only for the purposes of filing an application for the reissue of the passport or for grant of a fresh passport, the appellant shall cooperate by doing the needful”

The Court accordingly set aside the condition imposed on the husband to return the passport of his son and his wife. 

The Court said that it would be open to the wife to apply to the Regional Passport Office, for reissuance of her passport or for a fresh passport. The application of the wife is to be processed on the ground that her passport has been lost, the Court directed. The Court also directed the husband to cooperate by providing necessary documents for the obtaining his wife’s passport.

Advocate Shreeyash U.Lalit argued the matter on behalf of the appellant.

Case Title: Chennupati Kranthi Kumar V. State of Andra Pradesh, Criminal Appeal Nos.1601–1602 of 2023

Citation: 2023 LiveLaw (SC) 565

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