Chapter XXXIII of Code of Criminal Procedure, 1973 deals with provisions as to Bail and Bonds. The Court while granting bail under this chapter imposes certain conditions on which accused may be released on bail and the accused is mandate to comply with such conditions for such tenure of his release on bail.
Some of the condition while releasing person on bail are: to surrender/deposit the passport, if any, with the Police/Court and not to leave the territory India/State without prior permission of the Court and further to give undertaking if the person is not holding any passport.
Release of Passport by court:
When a person is released on bail and his passport is deposited with the court as one of the condition of bail, he can move an application in a competent court for modification/ alteration/ deletion conditions of bail for releasing his passport.
The Court by taking into consideration of such application, may release a passport of a person when there exists a situation: where passport or visa of a person is getting expired, or the person wants to visit abroad for business, job or religious purpose , to meet his family settled in abroad, or when a person is a member of airlines company and his/her job is of such that they have to visit foreign country frequently, depending on facts and circumstances of each case, court may release the passport of a person.
Observations of court while releasing the passport of the applicant:
In case of Smt. Anjana Batheja and others Vs. Central Bureau of Investigation, reported in 2003 Crl.L.J.4301,Honorable Delhi High Court while releasing the passport of the applicant has held that “Not only on the face of it but even on the premise of layman’s understanding condition of releasing the passport of the accused subject to deposit of passports of his mother and wife and deposit of Rs.one lac by way of F.D.R appears to be highly irrational, illegal, harsh and difficult to ram down the throat as it is unknown to the criminal jurisprudence”.
This Court further stated that “Once passport of the accused was released on the condition of filing FDR of Rs.1 lac, though the legality of such a condition is in serious doubt by imposing of any other condition or order for depositing the passports of his mother and wife was beyond the judicial domain of the court. ”
Further, in case of Ashok Kumar v. State of Kerala reported in [2009 (2) KLT 712], the court has held that even in a case where criminal proceedings are pending against an accused person and his passport has been surrendered, then, he can be permitted to go abroad for a particular period on certain conditions to be imposed for that purpose, and for that purpose the passport also can be temporarily released to him.
But the core question arise here is, does Criminal court has power to impose condition of surrendering passport while granting bail? :
The Punjab & Haryana High Court on October 9, 2018, in the case of Capt. Anila Bhatia v. State of Haryana has held that the criminal courts cannot order the surrender of passports as a condition for the grant of bail, including anticipatory bail.
Justice Daya Chaudhary stated in the order that the authority to impound passports lies solely 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 (Cr.P.C.), 1973.
Justice Chaudhary observed that while granting bail, Section 437 of the Cr.P.C did give the concerned court discretionary powers to impose any condition necessary in the interest of justice. However, this general provision could not 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, Justice Chaudhary also observed that the imposition of such restrictions violates a person’s fundamental rights under Article 21 of the Indian Constitution as it curtails his/her right of movement beyond the country.
“…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,” the court said.
Application for release of passport from court, where to file?:
Ordinary, if the passport of the person is seized by the police authority during investigation, he can file an application for release of his passport before the learned magistrate where the passport of the person is produced. When the person is prosecuted and tried in the court and his passport is taken over by the trial Court, then it will be open for the person to file an appropriate application before the concerned trial Court for return of his Passport. But when such trial court rejects the application of a person to release his passport then he may approach to higher court of such trial court.
In one of the case of Varshaben Nayankumar Doshi vs State Of Gujarat decided on 27 October, 2015, Hon’ble Gujarat High Court observed as under: “Once the accused is acquitted, even if the State is contemplating filing of any acquittal appeal, or even if any acquittal appeal is filed, that by itself is not sufficient to retain the Passport. It will be open for the petitioner to file an appropriate application before the trial Court for return of his Passport. If such application is filed, the trial Court shall pass appropriate order returning the Passport to the petitioner. The law in this regard is well settled.”
Thus, in my opinion the criminal courts have to take extreme care in imposing condition to surrender the passport while granting bail. 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. At the same time, interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation, rights of the police and the interest of the society. The criminal court has to consider possibility of the accused if released on bail, fleeing justice and thereby thwarting the course of justice which affects the majesty of the law, as also the individual rights of the accused.