Y Usha Gayatri Vs State of AP and Anr on 13 Oct 2020

Posted on October 18, 2022 by ShadesOfKnife

A single judge bench of AP HC held as follows while directing to release the passport of the petitioner.

From Para 4 and 5,

4. In view of the above finding of the Hon’ble Apex Court, directing for surrender of passport or to deposit the same in the Court is ex-facie illegal and it is clearly un-sustainable under Law.
5. In the light of the law laid down by the Hon’ble Apex Court, neither the Police nor the Courts have power to seize the passport or to direct the accused to deposit or surrender the passport even when a criminal case is pending in the Court of law and only the Passport Officer is the competent authority to impound the passport.

Y Usha Gayatri Vs State of AP and Anr on 13 Oct 2020

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Kuchiraju Srinivasa Rao Vs State of Andhra Pradesh on 28 Jan 2020

Posted on October 18, 2022 by ShadesOfKnife

A single judge bench of AP High Court held as follows while directing to release passport of the petitioner.

6. The law is now fairly well settled that the Courts have no power to direct the accused to deposit or surrender the Passport, even when a criminal case is pending against the accused in the Court of law. It is only the Passport Officer, who is the competent authority under Passports Act, to impound the Passport of any citizen of the country. If the police got any apprehension that the accused, who is facing trial in the criminal case, may leave the country and he may not be available for trial of the case, they have to approach the Passport authority concerned with a request to impound the Passport of the said person on the ground that he is facing trial in a criminal case. If the Court, before whom the accused is facing trial, is of the opinion that if the accused leaves the country and goes abroad that he may not be available for trial, the Court can issue necessary direction to the accused not to leave the country without prior permission of the Court or on a petition filed by the prosecution to that effect, the Court can pass appropriate order in this regard.

From Para 8, the Precedent

8. Therefore, in view of the dictum laid down in aforesaid Judgment of the Hon’ble Apex Court, the impugned order directing the petitioner to surrender his Passport or to deposit the same in the Court is ex-facie illegal and it is clearly unsustainable under law.

Kuchiraju Srinivasa Rao Vs State of Andhra Pradesh on 28 Jan 2020

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Praveen Surendiran Vs State of Karnataka and Anr on 21 Mar 2022

Posted on October 18, 2022 by ShadesOfKnife

A single judge bench of Karnataka High Court held as follows:

From Para 4,

4. The present case concerns an application made by the petitioner before the trial Court seeking release of his passport on the ground that the son of the petitioner studies in a school at Paris – Sports Etudes Concept and was attending classes virtually. Since classes have now started physically, the
petitioner wanted to accompany his son for getting him admitted in the school. This application is rejected by the trial Court. It is the rejection of the application that is called in question in the present proceedings. Therefore, these proceedings concern with the rejection of release of passport of the petitioner and not any other issue that is pending in plethora of cases between the parties.
6. Learned senior counsel Sri Ashok Haranahalli would submit that several proceedings between the parties are pending consideration. The Apex Court has stayed all further proceedings in other cases. The case at hand is not an offshoot of those cases, but an independent case of an application, where the passport of the petitioner is seized, not impounded by the police and there is grave urgency for the petitioner to leave the country and get his son admitted to the school at France.

And then

17. It is not in dispute that the petitioner is facing criminal proceedings before the competent criminal Court and the Police after investigation have also filed charge sheet in the matter in which, the petitioner is arrayed as Accused No.10. Therefore, it is not a case where the passport of the petitioner cannot even be seized or impounded, but, by whom is the question.
18. The Passport Act is a special enactment and is trite that it being a special enactment would prevail over Section 102 or Section 104 of the Cr.P.C., which empower the Police to seize and the Court to impound any document. Impounding of any document produced before the Court cannot stretch to an extent that it can impound the passport. Therefore, the deposit of passport before the Court or passport being held before the Police, both will become without authority of law. The further observation of the Court that it would be in its custody till conclusion of trial is, clearly on the face of it, without authority of law, as it would amount to impounding the passport. This very issue fell for consideration before the Apex Court in the case of SURESH NANDA v. CBI

The Apex Court dealt with the very issue as to who would be the Authority to impound the passport. The Apex Court holds that neither the Police nor the Court invoking powers under Section 102 or Section 104 of the Cr.P.C. can seize or impound a passport. Impounding of a passport is by the Authority vested under the Act as depicted therein. It is not in dispute that the Authority under the Act is not even made aware of seizure or retention of the passport by the Police or before the Court.

From Para 24,

21. The power of impounding a document under Section 104 of the Cr.P.C. is available to a Court. This cannot stretch to an extent of impounding the passport. The passport coming within the purview of the Act and it being a special law would prevail over the provisions of Section 104 of the Cr.P.C. The Court can impound any document, but not the passport as it is dealt with under a special enactment. The power of impounding is available only to the Competent Authority under the Act, in terms of Section 10 of the Act. Wherefore, the order rejecting the release of passport by the Court observing that it is held in safe custody till the conclusion of the trial is unsustainable. Therefore, the petitioner becomes entitled for release of passport in his favour, as right to hold a passport and travel is, without doubt, held to be a fundamental right in plethora of judgments.

Praveen Surendiran Vs State of Karnataka and Anr on 21 Mar 2022

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D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Posted on April 27, 2022 by ShadesOfKnife

A single judge bench of AP High Court held as follows:

Time and again this Court is coming across many cases, wherein the deposit of passport is being ordered by the Courts at the time of granting bail etc. The Hon’ble SupremeCourt of India in Suresh Nanda’s case (1 supra) has very clearly laid down that impounding of passport is not power that is available to the police. The police have a right tomerely seize the passport under Section 102 Cr.P.C., but they do not have the power to retain the passport. The Hon’ble Supreme Court of India has already clearly held that the retention of a passport for a long time also amounts to impounding of the passport. This is very clearly laid down in the judgment of Suresh Nanda’s case (1 supra). Apart from that the Hon’ble Supreme Court of India also clearly held thatafter the passport is seized and if the State was of the opinion that the petitioner was likely to flee the country or that he is at a flight risk, the only option available to the State or theprosecution is to file an appropriate application before the Passport Authorities to impound the passport for the reasonsmentioned in Section 10(3) of the Act. The Passport Authorities shall give a notice to the accused and after hearing the accused, they will have to pass an order. Sincethe cancellation of the passport is an order having severe civilconsequences, the accused also has a right of being heardbefore the passport is impounded. The Passport Act, being a special law will prevail over the general law.

Next Para,

In that view of the matter, irrespective of the fact that whether in the present case the issue relates to the voluntary deposit of the passport or deposit pursuant to an order of the Court, the fact remains that neither case is supported by the law. If the counsel made a wrong concession, the same cannot be enure to the benefit of the prosecution. A party should not suffer for any mistake committed by the counsel. If the same is a part and parcel of the lower Courts order, then it is clearly opposed by the law as interpreted by the Hon’ble Supreme Court of India in Suresh Nanda’s case (1 supra). Therefore, for both these reasons, this Court holds that the condition about the deposit of the passport cannot be imposed by a Court while granting bail or for any other reason. The only option left in such cases, when the passport is seized is to take steps under the Act for cancellation/impounding. Learned Public Prosecutor has stated that the original passport is lost and the accused has applied for a duplicate passport and has flouted the Court
order. Basing on the written instructions received by him, he states that petitioner/A.1 is also liable for contempt of Court. This is also not correct and the order of the Court does not seem to suggest this. As mentioned earlier, neither the Court can impose such a condition nor can the counsel give a
concession and deposit the passport. Even if the passport is deposited pursuant to the concession made by a counsel, the same cannot be retained indefinitely by the Court or the Police till the trial is concluded.
In fact, in the decision of Suresh Nanda (1supra), the Hon’ble Supreme Court of India noticed that under Section 10(a) of the Act, even the Central Government can only retain the passport for four weeks. Thereafter, a further order from Passport Authorities is necessary for retention of the passport.
After clarifying the law on the subject and holding that the impugned order passed by the I Additional Chief Metropolitan Magistrate is contrary to law, this Court leaves it open to the prosecution to take such steps as are warranted by law, if they are so advised to cancel the passport of the accused.

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/130750295/

Suresh Nanda vs C.B.I. on 24 January, 2008

Posted on July 22, 2018 by ShadesOfKnife

In this landmark judgment, Hon’ble Supreme Court has held that, no one, except Passport Authority, can impound a passport; nor police nor Courts. Period.

The Apex Court held that

there is a difference between seizing 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 possession. Thus, the seizure is done at a particular moment of time. However, if after seizing of a property or document, said property or document is retained for some period of time, then such retention amounts impounding of property/or document.

And also

Maintaining that, the Passport Act, 1967 is a special act and thereby prevails over the Cr.P.C. which is a general law, vide G.P. Singh’s Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim \023Generalia specialibus non derogant\024. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.

This judgment has lead to lot of other judgments wherein the various High Courts in India had ordered lower courts to return back the passports of accused, that were either confiscated by the police as part of their search operations or crime investigation or had been surrendered to Courts, as a condition to obtaining Anticipatory Bail. They are listed here.

Suresh Nanda vs C.B.I on 24 January, 2008

Citations : [2008 AIR SC 1414], [2008 AIR SC 0 898], [2008 SCC 3 674], [2008 LW CRL 1 503], [2008 SCALE 2 46], [2008 JT 2 174], [2008 ALL MR CRI 1189], [2008 ALT CRI 2 344], [2008 DLT 147 397], [2008 CCR 1 318], [2008 SLT 2 245], [2008 AIOL 107], [2008 BOMCR CRI SC 2 514], [2008 SCC CRI 2 121], [2008 AIR SCW 898], [2008 CRLJ SC 1599], [2008 MLJ CRL 1 1195]

Other Sources :

https://indiankanoon.org/doc/572504/

https://www.casemine.com/judgement/in/5609ae74e4b0149711413efc

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Tag: Suresh Nanda vs C.B.I.

Y Usha Gayatri Vs State of AP and Anr on 13 Oct 2020

Kuchiraju Srinivasa Rao Vs State of Andhra Pradesh on 28 Jan 2020

Praveen Surendiran Vs State of Karnataka and Anr on 21 Mar 2022

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Suresh Nanda vs C.B.I. on 24 January, 2008