THE Karnataka High Court earlier this week opined that under Section 104 of the Criminal Procedure Code (CrPC), a court can impound various documents of an accused but not their passport. Impounding one’s passport can be done only under the Passports Act, it held in an order on Monday.
In this regard, the 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.”
The petitioner had moved the high court challenging a trial court order which rejected the release of his passport.
He was accused of offences punishable under Sections 420 (cheating and dishonestly inducing delivery of property), 465 (punishment for forgery), 467 (forgery of valuable security, will etc.), 468 (forgery for purpose of cheating) and 471 (using as genuine a forged document) of the Indian Penal Code on a complaint registered by the Group Chief Executive Officer of MEMG International India Private Limited, the second respondent in the matter.
After the police then filed its charge sheet, the accused moved the high court. The court stayed further proceedings in the case and granted him bail. The accused then approached the trial court seeking the release of his passport as he expressed his intention to accompany his son,on a trip to Paris for the latter’s education. on March 2, 2022, the trial court rejected his application on the likelihood that the petitioner would abscond from the country.
Advocate S..K Venkata Reddy, appearing for the second 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 him would be parked elsewhere. Hence, it would become difficult to secure his presence in the future, since several proceedings are pending consideration between the parties.
What the court held
The primary question that the high court looked into is – “whether the order rejecting release of passport of the petitioner … is tenable in law?“
For this purpose, the court first went through certain provisions of the CrPC – Section 102, which empowers the police to seize certain properties, and section 104, which deals with the power of the Court to impound a document that is produced.
This is because the court noted that the seizure of the passport, in the case at hand, had happened by invoking the power of the police under section 102, and the passport was retained by the Court under section 104.
With this, the court pointed out that the issuance of passport and its impounding is dealt with under a special enactment – The Passports Act, 1967. Section 10 of this legislation 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 the provision.
Since the Passports Act is a special enactment, it would prevail over sections 102 or 104 of the CrPC, the court 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.”
The court also relied on the Supreme Court Judgment in the case of Suresh Nanda vs. CBI (2008) in which the Supreme Court had held that neither the police nor the court have powers under sections 102 or 104 of the CrPC to seize or impound a passport. Impounding of a passport is by the Authority vested under the Passports Act.
Justice Nagaprasanna also noted that the authority under the Act was not even made aware of seizure or retention of the passport by the police or before the court.
“On a fusion of the facts, the Code, the Act and the judgment in the case of SURESH NANDA what would unmistakably emerge is 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.”
With these observations, the court partly allowed the petitioner’s application, and quashed the trial court’s order, which rejected the release of his passport. It also directed the trial court to hand over the passport to the petitioner within three weeks.
The court also granted liberty to the respondents to approach the Passport Authority under section 10 of the Passports Act for impounding the petitioner’s passport after affording him a reasonable opportunity.
Click here to view the Karnataka High Court’s order.
