Landmark case analysis on Impounding of passport in 498A cases
The Passport Act is a special statute and hence it would prevail over Section 102 or Section 104 of the Criminal Procedure Code (CrPC) that empowers the Police to seize and the Court to impound any document. In the case of Suresh Nanda v. CBI[i], it was stated by the court that “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 the right to hold a passport and travel is, without doubt, held to be a fundamental right in a plethora of judgments.”
Impounding of passport by Court
The High Court of Madhya Pradesh in Hardik Shah v. Union of India & Another[ii] observed that impounding the passport of a traveler based on unjustified reasons affects the person’s fundamental right of livelihood ensured under Article 21 of the Constitution of India. Justice Sujoy Paul held thatthe passport of a person cannot be impounded just because a case is pending that involves an offense u/s 498A of the Indian Penal Code (IPC) or a red corner notice is issued against a person[iii].
In another case of Praveen Surendiran v. State of Karnataka[iv]- It was stated by the Karnataka High Court that any documents u/s 104 of the CrPC be impounded by the court, however, it cannot impound the passport of an accused, and this can be done only by the appropriate authority provided under the Passports Act that is a special enactment.
In the instant matter, Justice M Nagaprasanna clarified that “The power of impounding a document under Section 104 of the CrPC 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 CrPC. 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[v].”
In Leena Manimekalai v. Susi Ganeshan[vi]–The Sessions Court held that“It has been categorically held that impounding of passport cannot be done by the court u/s 104 of CrPC. A court is competent to impound any document gathered during the investigation and produced before the court. In this case, the passport had not been produced before the Court. So invoking Section 104 CrPC to impound the passport is not proper”.
Anticipatory bail and impounding of the passport
Some of the courts in India give anticipatory bail by imposing a condition that a passport is impounded. However, such a condition should not be imposed as Section 10(3) of the Act says the Passport authority has the power to impound a passport and no other authority can.
In the case of Capt. Anila Bhatia v. State of Haryana[vii]- It was clarified that Sec. 10(3)(e) of the Act deals with impounding of passport but Sec. 104 CrPC permits the court to impound the document to produce before the Court. The former Act overrides the latter Code, to impound the passport. Hence, the direction to surrender the passport indefinitely amounts to impounding of the passport itself[viii]. The Court u/s 104 of the CrPC cannot impound a passport though it can impound a document or a thing.
In the case of Suresh Nanda Case (supra), the Apex Court held that a passport cannot be impounded by a court. It further clarified that “Impounding of a “passport” is provided for in Section 10(3) of the Act. The Passports Act is a special law while CrPC is a general law. It is well settled that the special law prevails over the general law. Section 104 only enables the court to impound any document or thing other than a passport.”
Can NRI’s passport be impounded?
The Court dealt with the said question in Suresh Nanda Case (supra), wherein an NRI was settled in the UK and his passport was seized by the Police. The Central Bureau of Investigation (CBI) then retained the passport. The CBI court directed for release of the passport and on an appeal, the High Court reversed the order of the CBI Court.
The matter was then appealed to the Supreme Court. Section 10(3)(e) of the Act was analyzed and the judgments were taken into consideration- Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer[ix] and Maneka Gandhi v. Union of India and another[x]. It was held by the Apex Court that the Passports Act, 1967 is a special statute and it would prevail over Section 104 of the CrPC that confers general power upon the Court to impound any document.
Facts in brief: Hardik Shah Case (Supra)
In the instant matter, Hardik Shah was a traveler moved to the High Court against the action of the Regional Passport Authority wherein the authority did not issue a regular passport for ten years and also impounded his passport.
There was a matrimonial discord between Hardik with his wife and she took his passport along with her and also filed an FIR against him and family members alleging demand of dowry. Hardik got bail and no conditions were imposed on him. He filed a petition for divorce u/s 13 of the Hindu Marriage Act. As his wife took his passport with him and hence he applied for re-issuance of it, u/s 10(3) of the Passport Act, 1967, a show-cause notice was issued to him in 2019 on the complaint filed by his wife. She alleged that he was not attending criminal proceedings and in the said notice he was asked why his passport should not be impounded.
He was not supplied a copy of the complaint and supporting documents by the authority despite his request. He was directed by the passport authority to surrender the passport or else it shall be canceled. Thereafter, the passport was impounded without any hearing.
After the passport was impounded, he was supplied with the complaint copy and supporting documents informing him those passport facilities can be granted to him only after the submission of permission from the concerned Court. He was not given any opportunity of being heard and hence he approached the High Court for violation of his fundamental rights.
Cases referred
In Rajesh Sharma & Others v. State of U.P. & Others[xi], it was ruled for NRIs that in cases involving offenses under Section 498 of the IPC, impounding of passport or issuing of red corner notice should not be a routine. The said exercise can be done if the Investigating Officer is satisfied that the arrest is mandatory and the accused is absconding to disturb the routine legal proceedings. This is not the case of the respondents that under any information given by investigating authority, the passport was impounded so that petitioner cannot abscond from legal proceedings. Thus, on this account, the impugned action cannot be countenanced.
In Navin Kumar Sonkar v. Union of India & Others[xii]- The Court opined that mere pendency of a criminal case cannot be a ground to initiate action by the passport officer. The pendency alone can also not be a ground for impounding the passport. There is a need for application of mind by a passport officer regarding the nature of the criminal case.
Decision of the Court
The High Court set aside the order of the respondents wherein they impounded/canceled the passport. It further directed the respondents to issue a regular passport for 10 years to the petitioner. It clarified that the pendency of criminal/matrimonial cases cannot be a ground to deny the passport.
Conclusion
In the case of Preeti Gupta v. the State of Jharkhand[xiii]- It was opined by the Apex Court that most of the cases of Section 498A IPC are false and bogus. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent, but false cases are frustrating this object. Hence, from the aforesaid discussion and judgment analyses, it can be summed up that the passport cannot be impounded just because a case involving an offense under Section 498-A, etc. is pending or a red corner notice was issued[xiv].
[i] (2008) 3 SCC 674
[ii] Writ Petition No.5692/202
[iii] https://www.livelaw.in/news-updates/unjustified-impounding-passport-vlogger-affects-fundamental-right-livelihood-madhya-pradesh-high-court-187465#:~:text=%22The%20pendency%20of%20matrimonial%20cases,period%20of%20one%20year%20only
[iv] 2022 LiveLaw (Kar) 87
[v] https://www.livelaw.in/news-updates/karnataka-high-court-section-104-crpc-passports-act-impounding-of-passport-194791
[vi] https://www.livelaw.in/news-updates/leena-manimekalai-passport-impounding-not-permitted-under-section-104-crpc-184120
[vii] Criminal Misc. No. M-42638 of 2018
[viii] https://lexspeak.in/2019/03/impounding-of-passport-as-a-bail-condition-in-498a-or-other-criminal-offences/
[ix] MANU/SC/0040/1967: 1967 (3) SCR 525
[x] MANU/SC/0133/1978 : 1978 (1) SCC 248
[xi] 2018 10 SCC 472
[xii] ILR 2018 MP 677
[xiii] (2010) 7 SCC 667
[xiv] https://www.mondaq.com/india/trials-appeals-compensation/653042/impounding-of-a-passport–ambiguity-of-applicable-laws-vis-a-vis-defaulter39s-delight
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