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2018 Supreme(P&H) 2550
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mrs. Justice Daya Chaudhary
Criminal Misc. No. M-42638 of 2018
Capt. Anila Bhatia
v.
State of Haryana
{Decided on 09/10/2018}
Mr. Manish Dadwal, AAG, Haryana, for the respondent -State., Mr. Ashit Malik, Advocate for the complainant.
Bail – Surrender of Passport – While granting bail or anticipatory bail, Criminal Court 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.
Passport – Impounding of Passport – Police may have power to seize a passport but it does not have power to retain or impound the same, because that can only be done by the passport authority
Headnote:(A) Criminal Procedure Code, 1973 S.438 – Anticipatory Bail – Surrender of Passport – While granting anticipatory bail court imposed condition of surrender of passport in court – Since applicant is pilot by profession and has to fly abroad at short notice cannot take prior permission from court every time – In present case condition of surrender naturally amounts to impounding of passport itself – Condition of surrender of passport set aside.
(B) Criminal Procedure Code, 1973, S.438 and S.439 – Bail – Surrender of Passport – While granting bail or anticipatory bail, it is within power of Criminal Court to impose a condition that such a person shall surrender his passport in court – 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.
The 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 Crl. M.C. No.1734 of 2011 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. (Para 16)
(C) Criminal Procedure Code, 1973, S.102 – Seizing of Passport – While the police may have power to seize a passport under Section 102 CrPC if it is permissible within the authority given under Section 102 CrPC, 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 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. (Para 20)
(D) Criminal Procedure Code, 1973, S.102 – Seizing of Passport – Difference between seizing 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 – Thus, the word “impounding” really means retention of possession of a good or a document which has been seized. (Para 19)
Ms. Daya Chaudhary, J. - The petitioner is aggrieved by one condition (d) of the order of bail to the effect that she shall surrender/deposit her passport, if any, with the Police/Court and shall not leave India without prior permission of the trial Court imposed by the Additional Sessions Judge, Gurugram vide order dated 14.09.2018 while granting anticipatory bail in case FIR No.614 dated 23.08.2017 registered under Sections 192, 403, 420, 467, 468, 471, 120-B IPC at Police Station DLF, Sector 29, Gurugram.
2. Learned Senior Counsel for the petitioner submits that the petitioner is Senior Captain with Air India Airlines and is performing her duties as Pilot. She does not know in advance as to on which flight and to which country, she will have to fly. A self attested copy of flight detail of the petitioner has been annexed as Annexure P-3 with the petition to show that sometimes the petitioner has flown from Delhi to Dubail; Delhi to Riyadh; Mumbai to Bangkok and so on. Practicably, it is difficult for the petitioner to approach on each and every day to the trial Court to seek prior permission in a short span of time as the petitioner is given a break of only 2-3 days before flying abroad.
3. Learned counsel further submits that the intervening period of stay in India after returning back and to fly again to a destination is very short and it is very difficult and inconvenient in compliance of the condition mentioned in the bail order. Learned counsel also submits that the there is no chance of absconding from the trial and she 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 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. A prayer has been made by the petitioner for grant of permanent permission to travel abroad in discharge of her official duties by relaxing impugned condition (d) in the bail order passed by the Additional Sessions Judge, Gurugram on 14.09.2018 by considering the nature of official duties and profession. 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 she 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 senior counsel for the petitioner as well as learned State counsel and have also perused impugned order dated 14.09.2018 passed by the Additional Sessions Judge, Gurugram, whereby, the petitioner has been released on anticipatory bail with certain conditions.
5. Admittedly, the petitioner is working as Senior Captain in Air India Airlines and facing trial in the FIR as mentioned above, which was registered on the complaint filed under Section 156(3) Cr.P.C. The Chief Judicial Magistrate, Gurugram issued a direction to lodge FIR as it was found to be cognizable offence of misappropriation and cheating against the petitioner being Vice President. The anticipatory bail application filed by the petitioner was allowed with certain conditions, which are as under: -
“(a) that, the applicants-accused shall join the investigation as and when required by the investigating officer and shall attend the same in accordance with the conditions of the bond; (b) that, the applicants-accused shall not commit an offence similar to the offence of which they are accused or suspected of the commission of which they are suspected;
(c) that, the applicants-accused shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts
