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Bail: Criminal Courts Cannot Impose Condition For Surrender Of Passport

In Capt. Anila Bhatia vs State of Haryana, an appeal was filed before the Punjab & Haryana High Court 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 High Court decided that the trial Court cannot impound a passport. 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. 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 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 that 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.

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