No Surrender Of Passport At The Time Of Granting Bail

The High Court of Punjab and Haryana at Chandigarh in case Captain Anila Bhatia Versus State of Haryana while dealing with Criminal Misc. No. M-42638 of 2018  has held that When a person is made to surrender his passport, it curtails his right of movement beyond the country.

No doubt, as per Section 102 (1) of Criminal Procedure Code, the power of Police Officer is there to seize certain property. The police may have the power to  seize a passport under Section 102 (1) of the Criminal Procedure Code but it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10 (3) of the Passports Act, 1967.  There is a difference between seizing of a document and impounding a document. 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.

In this case, while granting anticipatory bail, the Court of Additional Sessions Judge, Gurugram, imposed one of the conditions to the effect that she shall surrender/ deposit her passport, if any, with the Police/ Court and shall not leave India without prior permission of the trial court.

The Petitioner is a Senior Captain  with Air India Airlines and she  had filed this Criminal Misc.  of the grounds  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.

while dealing with the said conditions for grant of bail, the Court observed  that ;

When a person is made to surrender his passport, it curtails his right of movement beyond the country. Article 21 of the Constitution of India says :

No person shall be deprived of his life or personal liberty except according to procedure established by law.

The expression “personal liberty” is of the widest amplitude and it covers a variety of  rights which go to constitute the personal liberty of  a person. The Supreme Court, in Satwant Singh v. Asstt.  Passport Officer [ (1967) 3 SCR 525] held that “personal liberty” guaranteed under Article 21 Crl. M.C. No. 1734 of 2011  encompassed a right of locomotion, of the right to travel abroad. Every person  living in India has a fundamental right to travel, even outside India.

The criminal courts have to take extreme care in imposing such condition. It cannot mechanically, and 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.

Section 10 (3) (e) of the Passport Act specifically deals with impounding of passport whereas Section 104 Cr. P.C., allows the Court to impound the document  to produce before the  Court.  The Passport Act overrides the provision of Cr. P.C., for the purpose of impounding passport. In the present case in hand, the order directing to surrender the passport indefinitely amounts to impounding of the passport itself.

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