Debts Recovery Tribunals, Civil/Criminal Courts Don't Have Powers To Impound Passports Of Citizens: Karnataka High Court
The Karnataka High Court has held that the Debts Recovery Tribunal, or Civil/Criminal Courts and even the police do not have the power to impound the passport of a citizen.A single judge bench of Justice M Nagaprasanna said “The civil Court or the criminal Court itself do not have the power to impound the passport. Section 102 or 104 of the Cr.P.C. empowers the Police to seize and the Court...
The Karnataka High Court has held that the Debts Recovery Tribunal, or Civil/Criminal Courts and even the police do not have the power to impound the passport of a citizen.
A single judge bench of Justice M Nagaprasanna said “The civil Court or the criminal Court itself do not have the power to impound the passport. Section 102 or 104 of the Cr.P.C. empowers 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 those Courts can impound the passport also. The Court–either the criminal Court or the civil Court, issuing directions to deposit a passport before it till the conclusion of trial are those orders which are without authority of law. The Tribunal – Debts Recovery Tribunal can hardly have such power.”
The court observed thus while allowing a petition filed by Nitin Kasliwal who had approached the court seeking a direction to the Tribunal to release the passport standing in the name of the petitioner to the petitioner.
On 20-03-2015, the companies–lenders proceeded to initiate O.A.No.711 of 2015 before the Tribunal inter alia seeking repayment of sums allegedly in default, attachment and sale of properties of several companies and that of the petitioner.
An application comes to be filed by those Banks who had initiated proceedings invoking Section 22(2)(h) r/w Section 19(25) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, to surrender the passport of the petitioner and not leave the country without the permission of the Tribunal. The very next day on 16-04-2015, the Tribunal passed an order allowing the application to be filed seeking retention of the passport before the Tribunal.
The petitioner then filed an application seeking vacation of the interim order and the Banks filed their objections. The application seeking vacation of the interim order has to be rejected. Then, the petitioner on 05-04-2016, surrenders his passport before the Tribunal. The Tribunal then passed an order on 25-07-2016 holding that the petitioner shall be entitled to his passport as and when he requires to travel, subject to the production of an appropriate travel itinerary.
Since then, the petitioner has been filing applications before the Tribunal seeking permission to travel to several countries and on coming back surrendering the passport to the Tribunal. On 02-12-2016, an application seeking the release of his passport in his favour was filed, as the passport was expired and for re-issuance, the old passport was required, which came to be rejected. Following this he approached the court.
The bench went through the records and noted the issuance of a passport and its impounding is dealt with under a special enactment – the Passports Act, 1967. Sub-section (3) of Section 10 empowers the Passport Authority to impound or cause to be impounded or revoke a passport or travel document, subject to the conditions that are stipulated in sub-section (3) of Section 10 of the Act. One such condition of impounding of a passport is that, if the proceedings in respect of an offence alleged to have been committed by the holder of the passport are pending before a criminal court in India.
Then it said, “Therefore, the power of the Impounding Authority i.e., the Competent Authority under the Act is traceable to clause (e) of sub-section 3 of Section 10 of the Act which is the only provision applicable to the case at hand.”
The Court further added that “The Passport Act is a special enactment and is trite that it being a special enactment which would prevail over any power of even the civil court or criminal Court to retain or impound a passport.”
Relying on the Supreme Court judgment in the case of SURESH NANDA v. CBI (2008), 3 SCC 674 the bench held “Impounding of a passport is by the Authority vested under the Act as depicted therein. Retaining of the passport by the Tribunal can hardly be justified under the Act under which it functions much less under the provisions of the Act that are invoked by the Banks. Therefore, the petitioner becomes entitled for issuance of a writ of mandamus for release of the passport by reserving liberty to the 2nd respondent to act in accordance with the mandate of Section 10 of the Passports Act in the event need arises.”
Accordingly, it allowed the petition and directed the Tribunal to forthwith release the passport. It clarified that “This order, however, shall not come in the way of the authorities functioning under the Passports Act, 1967 from exercising their power.”
Appearance: Senior Advocate K.N.Phanindra for Advocate Bhairav Kuttaiah for petitioner.
Deputy Solicitor General Shanthi Bhushan H for R2
Citation No: 2023 LiveLaw (Kar) 479
Case Title: Nitin Kasliwal And Debt Recovery Tribunal I
Case No: Writ Petition No. 26333 OF 2023