Kulwant Singh @ Kalwant Singh vs State Of Punjab And Another on 21 January, 2025

Punjab-Haryana High Court

Kulwant Singh @ Kalwant Singh vs State Of Punjab And Another on 21 January, 2025

Author: Sandeep Moudgil

Bench: Sandeep Moudgil

                                       Neutral Citation No:=2025:PHHC:008858



CRM-M-615-2025                                                          -1-

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

                                        CRM-M-615-2025
                                        RESERVED ON: 10.01.2025
                                        PRONOUNCED ON: 21.01.2025

KULWANT SINGH @ KULWANT SINGH
                                                             .....PETITIONER

                                 VERSUS

STATE OF PUNJAB AND ANOTHER
                                                                 .....RESPONDENTS

CORAM: HON'BLE MRS. JUSTICE SANDEEP MOUDGIL.

Present:     Mr. Brijeshwar Singh Bhalla, Advocate
             for the petitioner.

           ***
SANDEEP MOUDGIL, J.

1. The petitioner is aggrieved by the condition Nos. (iii) & (iv) of the

order of bail to the effect that he shall surrender/deposit his passport, if any, with

the investigating agency and shall not leave India without prior permission of the

Court imposed by the Additional Sessions Judge, Moga vide order dated

04.12.2024 while granting anticipatory bail in case FIR No.76, dated 10.05.2024,

registered under Sections 420 and 406 IPC at Police Station City South, Moga.

2. Learned Counsel for the petitioner submits that the petitioner is a

permanent resident of Canada and the trial Court while allowing the application

seeking anticipatory bail to the petitioner has imposed a condition that he shall not

leave the Country without prior permission of the Court and Simultaneously,

another condition was also imposed, to surrender his passport with the

investigating agency. Learned counsel also submits that the there is no chance of

absconding from the trial and he undertakes to abide by all terms and conditions

imposed by the trial Court in the bail order or any condition to be imposed by this

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Court. It is also the argument of learned counsel for the petitioner that the challan

has not been presented so far and trial may take long time to conclude. Thus, a

prayer has been made by the petitioner for omission of impugned conditions No.

(iii) & (iv) imposed in the bail order passed by the Additional Sessions Judge,

Moga on 04.12.2024 by considering the fact that the petitioner is a permanent

citizen of Canada.

3. Learned State counsel has raised a preliminary objection that the

present petition is not maintainable as in case the petitioner is aggrieved in any

manner, firstly he should have approached the lower Court for modification of the

condition. Learned State counsel also submits that no blanket permission can be

given as the petitioner is involved in a serious offence and there is no emergency

and extraordinary reasons for approaching this Court straightway without availing

the appropriate remedy available to her before the lower Court.

4. Heard arguments of learned counsel for the petitioner as well as

learned State counsel and have also perused impugned order dated 04.12.2024

passed by the Additional Sessions Judge, Moga, whereby, the petitioner has been

released on anticipatory bail with certain conditions.

5. Admittedly, the petitioner is a permanent citizen of Canada and facing

trial in the FIR as mentioned above, which was registered on the basis of a

complaint moved by one Maninder Kumar. The anticipatory bail application filed

by the petitioner was allowed with certain conditions, which are as under: –

“(i) that the applicant shall make himself available for
interrogation by a police officer as and when required;

(ii) that the applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing such facts
to the court or to any police officer;

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(iii) that the applicant shall not leave India without previous
permission of the Court;

(iv) that the applicant is also directed to surrender his passport,
before the investigating officer.”

6. The petitioner is aggrieved by impugned conditions No. (iii) & (iv),

whereby, he has been directed to surrender his passport and not to leave India

without the prior permission of the trial Court. Section 437 of the Code deals with

power of the Court to grant bail in non-bailable offences. Under Section 437(3) of

the Code, while releasing a person accused, the Court shall impose certain

conditions, which are as under: –

“(a) that such person shall attend in accordance with the
conditions of the bond executed under this chapter,

(b) That such person shall not commit an offence similar to the
offence of which he is accused, or suspected, of the commission
of which he is suspected, and

(c) that such person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing such facts
to the Court or to any police officer or tamper with the evidence
and may also impose, in the interest of justice, such other
conditions as it considers necessary.” Even in the case of non
bailable offences other than falling under sub sec.(3) of Section
437, the court or Magistrate may in its/his discretion impose
conditions while granting bail to the person accused or
suspected of commission of such offence.”

7. Sub sec.(3) of Section 437 of the Code requires the Magistrate or

Court to impose conditions while granting bail to the petitioner. While granting

bail, the Court has to ensure that the accused or person suspected of commission

of the offence is available for investigation, enquiry and trial. To ensure that, the

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Court may impose certain conditions on such person while releasing him/her on

bail. In non bailable offences falling outside the scope of sub sec.(3) of Sec. 437 of

the Code, the power to impose condition is discretionary.

8. When a person is made to surrender his passport, it curtails his right

of movement beyond the country. Article 21 of the Constitution of India says :

“No person shall be deprived of his life or personal liberty except
according to procedure established by law.”

9. The expression “personal liberty” is of the widest amplitude and it

covers a variety of rights which go to constitute the personal liberty of a person.

The Supreme Court, in Satwant Singh v. Asst. Passport Officer [(1967) 3 SCR

525] held that “personal liberty” guaranteed under Article 21 encompassed a right

of locomotion, of the right to travel abroad. Every person living in India has a

fundamental right to travel, even outside India. Refusal by the Government to

issue a passport without a valid law prescribing reasonable restrictions was held to

be an arbitrary exercise of the executive power infringing the equality clause of

the Constitution. After the decision in Satwant Singh’s case the Parliament passed

the Passport Act, 1967 regulating conditions for the grant and refusal of passport

and providing grounds for impounding passport. Even after passing of the said

Act, in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] the Supreme Court

held that the right to travel abroad is not only encompassed in the right to liberty

under Article 21 of the Constitution, but that right could only be denied if the

procedural law which governed its excuse is fair.

10. The preamble to the Act says that it is, “to provide for the issue of

passports and travel documents, to regulate the departure from India of citizens of

India and other persons and for matters incidental ancillary thereto.” Section 10(3)

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of the Act empowers the passport authority to “impound or cause to be impounded

or revoke a passport or travel document” in the circumstances stated therein. Thus,

power to impound a passport is given to the passport authority under the Act.

11. The Supreme Court in the case of “Suresh Nanda vs. CBI“, 2008 (3)

SCC 674, has not considered the power of criminal court to direct a person

accused or suspected of commission of a non cognizable offence while he is

released on bail to surrender his passport in court to ensure his presence at the

investigation, enquiry or trial of the case. Instead, the Supreme Court has only

considered the scope and ambit of Section 104 of the Code which said;

” Any court may, it thinks fit, impound any document or thing
produced before it” under the code. The power under Section
104 of the Code could be exercised only with respect to a
document produced before the court and not, regarding a
document not produced before it. In Wharton’s Law Lexicon, the
word “impound” is given the meaning, “to place in the custody
of the law”. Per Oxford Dictionary the word means “to take
legal or formal possession of”. In Suresh Nanda‘s case (supra),
the Supreme Court considered the distinction between “seizing”

and “impounding” and held that impounding is of the document
which is seized. It was held that after enactment of the Act which
is a special Act, a passport seized (by the CBI in that case) could
be impounded only under Sec.10(3) of the Act and that so far as
Sec. 104 of the Code is concerned to the extent it related to
documents coming under Sec. 10(3) of the Act, the maxim,
‘generalia specialibus non derogant’ applied. In that case the
officials of the CBI conducted a search and seized the passport of
appellant. That document was retained by the CBI. Appellant
moved the court of Special Judge to release the passport. The
Special Judge Crl. M.C. No.1734 of 2011 allowed the
application. That order was set aside by the High Court in
revision. The Supreme Court set aside the order of the High

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Court on the principle above stated. Suresh Nanda was not a
case of the criminal court imposing a condition while granting
bail in a non bailable offence to surrender the passport. The
Supreme Court was not considering the power of criminal court
in view of Sec. 10(3) of the Act, to impose a condition to
surrender the passport while granting bail in a non bailable
offence. Instead, that question was left open as is clear from the
observation in paragraph 20 (of Suresh Nanda‘s case) that :

“We, however, make it clear that we are not expressing any
opinion on the merit of the case and are not deciding whether the
passport can be impounded as condition for the grant of bail.”

12. Even after enactment of the Act, in view of Article 21 of the

Constitution as explained in Maneka Gandhi‘s case (supra) the right to travel

abroad is encompassed in the right to personal liberty which cannot be deprived

except in accordance with the procedure established by the law. The right to travel

abroad can be deprived by following procedure established by the law. Sec. 437(3)

of the Code requires and enables the criminal court while releasing a person

accused or suspected of commission of a non bailable offence by imposing a

condition that such person shall attend in accordance with the conditions of the

bond executed under chapter XXXIII of the Code. Even in the matter of non

bailable offences not falling within sub sec.(3) of Sec. 437 of the Code, the

Magistrate or court has the discretionary power to impose condition while

granting bail.The person to whom bail is granted has to execute a bond in Form

No.45 given in the second schedule of the Code. The relevant provision of the

bond in Form No.45 states.” …… and required to give security for any attendance

before such officer or court on condition that I shall attend such officer or court on

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every day on which any investigation or trial is held with regard to such charge,

and in case of my making default therein……”

13. The function of the criminal court under Sec. 437 of the Code is not

merely to impose a condition in the bond that the person accused or suspected of

commission of a non bailable offence and to whom bail is granted attended before

the officer or court. The court has to ensure that the condition is complied. The

court has to enforce it. The court has to ensure that the accused who is released on

bail and who has a passport does not flee from justice. The “majesty of the law is

affected when a wrong doer escapes its mighty clutches-whether arising out of a

voluntary or involuntary situation.” The court has to preserve the majesty of the

law. That could be done, in the case of a person holding a valid passport by

directing him to surrender the same in court. That the passport authority may, if

proceeding in respect of an offence alleged to have been committed by the holder

of the passport or travel document are pending before a criminal court in India

impound or cause to be impounded or revoked such document under Sec.10(3)(e)

of the Act does not deprive the power and duty of the criminal court to enforce its

order by appropriate direction.

14. But the criminal courts have to take extreme care in imposing such

condition. It cannot mechanically, and in every case where an accused has a

passport impose a condition for its surrender. Law presumes an accused to be

innocent till he is declared guilty. As a presumably innocent person he is entitled

to all the fundamental rights guaranteed to him under the Constitution. At the

same time, interest of the society has also to be protected. The court has to strike a

balance between personal liberty of the accused guaranteed under Article 21 of the

Constitution, investigation rights of the police and the interest of the society. The

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criminal court has to consider possibility of the accused if released on bail, fleeing

justice and thereby thwarting the course of justice which affects the majesty of the

law, as also the individual rights of the accused. The court has to consider

antecedents of the person accused or suspected of commission of the offence,

nature of the offence he is said to have committed, necessity for his presence for

investigation, duration of investigation and such other relevant factors. The court

has to decide whether notwithstanding the personal liberty of the accused, interest

of justice required that his right of movement should be restricted during the

pendency of the case by directing him to surrender his passport. If necessary, it is

open to the criminal court direct the accused to execute bond in case he has to go

abroad for any purpose, for appropriate amount with sureties undertaking to

appear before the Investigating Officer or court as the case may be as and when

required to do so. These are though not exhaustive, some of the matters to be

borne in mind by the court while deciding whether there should be a condition to

surrender the passport or when there is a request to release the passport already

surrendered in court.

15. Section 10(3)(e) of the Passport Act specifically deals with

impounding of passport whereas Section 104 Cr.P.C., allows the Court to impound

the document to produce before the Court. The Passport Act overrides the

provision of Cr.P.C., for the purpose of impounding passport. In the present case

in hand, the order directing to surrender the passport indefinitely amounts to

impounding of the passport itself.

16. In the present case, while granting anticipatory bail to the petitioner, a

condition has been imposed to surrender his passport before the trial Court. The

petitioner is a permanent citizen of Canada.

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17. No doubt, as per Section 102(1) of Criminal Procedure Code, the

power of police officer is there to seize certain property. The police may have the

power to seize a passport under Section 102(1) of the Criminal Procedure Code

but it does not have the power to impound the same. Impounding of a passport can

only be done by the passport authority under Section 10(3) of the Passports Act,

1967. There is a difference between seizing of 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/her

possession. Thus, seizure is done at a particular moment of time. However, if after

seizing of a property or document, the said property or document is retained for

some period of time, then such retention amounts to impounding of the property

or document. In the Law Lexicon by P. Ramanath a Aiyar (2nd Edition), the word

“impound” has been defined to mean “to take possession of a document or thing

for being held in custody in accordance with law”. Thus, the word “impounding”

really means retention of possession of a good or a document which has been

seized.

18. Hence, while the police may have power to seize a passport under

Section 102 Criminal Procedure Code if it is permissible within the authority

given under Section 102 of Criminal Procedure Code, it does not have power to

retain or impound the same, because that can only be done by the passport

authority under Section 10(3) of the Passports Act. Hence, if the police seizes a

passport (which it has power to do under Section 102 Criminal Procedure Code),

thereafter the police must send it along with a letter to the passport authority

clearly stating that the seized passport deserves to be impounded for one of the

reasons mentioned in Section 10(3) of the Act. It is thereafter the passport

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authority to decide whether to impound the passport or not. Since impounding of a

passport has civil consequences, the passport authority must give an opportunity

of hearing to the person concerned before impounding his passport. It is well

settled that any opportunity of hearing to a party vide State of Orissa v. Binapani

Dei AIR 1967 SC 1269. The trial Court cannot impound a passport. No doubt,

Section 104 Criminal Procedure Code states that the Court may, if it thinks fit,

impound any document or thing produced before it but this provision will only

enable the Court to impound any document or thing other than a passport as

impounding a “passport” is provided for in Section 10(3) of the Passports Act. It is

a settled law that the special law prevails over the general law. The Passports Act

is a special law while the Criminal Procedure Code is a general law. Hence,

impounding of a passport cannot be done by the Court under Section 104 Criminal

Procedure Code though it can impound any other document or thing.

19. For the reasons recorded here-in-above and law discussed, the

present petition is partly allowed and impugned condition No. (iv) of order dated

04.12.2024 (Annexure P-1) passed by the Additional Sessions Judge, Moga is set

aside. However, the petitioner is at liberty to move a specific application for

release of his passport within a period of two weeks from the date of receipt of

certified copy of this order. In case, such an application is moved, the trial Court is

directed to consider the application and return the passport forthwith without any

delay.

20. As far as the condition No.(iii) of the impugned order is concerned, it

is directed that the petitioner shall not leave India without the prior permission of

the Court and must obtain explicit permission from the court for any travel outside

India, with a detailed application outlining the purpose and duration of the trip.

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If permitted to travel, the petitioner must provide regular updates to the authorities

regarding his whereabouts and activities during the trip, including check-ins at

specified intervals. The petitioner may be required to disclose all financial

transactions related to travel expenses and provide proof of funding sources to

prevent potential flight risks. Upon return from any permitted travel, the

petitioner must report immediately to the police station.

21. Additionally, the petitioner shall also mark his presence before the

Station House Officer concerned in whose jurisdiction he is residing on every

fortnight.

22. A copy of this order be sent to the District & Sessions Judge, Moga

for its strict compliance.

23. In the afore-said directions, the present petition stands disposed off.

21.01.2025                                             (SANDEEP MOUDGIL)
sham                                                         JUDGE


Whether speaking/reasoned         :       Yes/No
Whether Reportable                :       Yes/No




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