Court Cannot Impound Passport Under Section 104 CrPC, As It Can Be Done Only By Authority Under Passports Act: Karnataka High Court

A single judge bench of Justice M Nagaprasanna said,

"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."

Further, the court clarified that the Police do have power to seize the passport under Section 102 of the Cr.P.C. The passport so seized cannot lie indefinitely with the hands of the Police as beyond a certain period seizure would amount to impounding, which have a world of difference between them and which power is not conferred to the Police under Section 102 of the Cr.P.C.

Case Background:

Petitioner Praveen Surendiran was accused of offences punishable under Sections 420, 465, 467, 468 and 471 of the IPC on a complaint registered by one Vaitheeswaran S, Group Chief Executive Officer of MEMG International India Private Limited. The police have filed its chargesheet in the court and trial is pending. The High Court has stayed further proceedings in the case against the accused and he has been released on bail.

The accused had preferred an application before the trial Court seeking release of his passport on the ground that the son of the petitioner studies in a school at Paris. Since classes have now started physically, the petitioner wanted to accompany his son to get him admitted in the school. This application came to be rejected by the court by its order dated March 2, 2022.

Petitioners arguments:

Senior Advocate Ashok Haranahalli appearing for the petitioner 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 in France.

Complainant opposed the plea:

Advocate S.K.Venkata Reddy appearing for the 2nd respondent/de-facto complainant, contended that if the petitioner is let off, he would run away from the country and funds which have been misappropriated by the petitioner along with others would be parked elsewhere, thereby it would become difficult to secure presence of the petitioner in future, since several proceedings are pending consideration between the parties.

Court findings:

The court referred to Section 10 of the Passports Act, which provides for Variation, impounding and revocation of passports and travel documents.

It observed, "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."

It added, "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. 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."

Noting that the petitioner is facing a criminal proceedings and it is not a case where the passport cannot be impounded or seized, the court went on to say,

"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 any document produced before the Court cannot stretch to an extent that it can impound the passport."

It opined, "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."

Relying on the judgement of the Supreme Court in the case of SURESH NANDA v. CBI (2008) 3 SCC 674, the court said, "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."

Following which the court partly allowed the petition and quashed the order rejecting release of passport by the trial Court stands quashed and directed the trial court to hand over the passport to the petitioner within 3 weeks from the date of receipt of a copy of this order.

Further it permitted the respondents to approach the Passport Authority under Section 10 of the Passports Act, 1967 for impounding the passport of the petitioner in accordance with law, after affording a reasonable opportunity to the petitioner.

Case Title: PRAVEEN SURENDIRAN v. STATE OF KARNATAKA

Case No: CRIMINAL PETITION No.1892 OF 2022

Citation: 2022 LiveLaw (Kar) 87

Date of Order: 21ST DAY OF MARCH, 2022

Appearance: Senior Advocate ASHOK HARANAHALLI, a/w Advocate SRINIVAS RAO S.S for petitioner; Advocate YASHODA K.P for R1; Advocate S.K.VENKATA REDDY, for R2

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