Nitish Banka

    • Impounding of Passport as a Bail condition in 498a or other Criminal Offences

    Generally we see that NRI’s are the worse hit when criminal proceedings are lodged against them in India.

    These people work for their living in abroad and are on Indian Passport and on foreign visa. Any criminal proceedings in India can dent their employment prospects and Visa rejection.

    Some courts in India give anticipatory bail on a condition that passports is impounded.

    Can this condition be imposed?

    No, Why? Because Section 10(3) of the passports act says the Passport authority has a power to impound passport and no other authority can.

    Held in Capt. Anila Bhatia Vs, State of Haryana.

    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 Actoverrides 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.

    11 of 14 In the present case, while granting anticipatory bail to the petitioner, a condition has been imposed to surrender his passport before the trial Court. The petitioner is working a Pilot in Air India Airlines and her nature of duties are such that she is to fly aeroplane and as per duty roster assigned to her, she is to fly abroad on certain occasions where she is not aware about the next program as only a short notice is there during which it is very difficult for the petitioner to take prior permission and to have the the passport in case, the same is deposited.

    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 the Law Lexicon by P. Ramanath a Aiyar (2nd Edition), the word “impound” has been defined to mean “to take possession of a document or thing for being held in custody in accordance with law”. Thus, the word “impounding” really means retention of possession of a good or a document which has been seized.

    12 of 14 Hence, while the police may have power to seize a passport under Section 102 Criminal Procedure Code if it is permissible within the authority given under Section 102 of Criminal Procedure Code, it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Criminal Procedure Code), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any opportunity of hearing to a party vide State of Orissa v. Binapani Dei AIR 1967 SC 1269. 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.

    Adv. Nitish Banka