HC issues guidelines on impounding passports
The High Court (HC) of Kerala in Thadevoose Sebastian v The Regional Passport Office [WP ( C ) No 15812 of 2021], says that the grant of permission by the Magistrate enabling an accused to travel abroad will be of great significance, especially since it will be a process of balancing the fundamental right of a citizen to travel abroad and the need to ensure the presence of the accused during trial.
Many a time in the past, the main consideration in granting travel permission has been the subjective satisfaction of the Magistrate rather than the required objective satisfaction.
To avoid subjectivity, the HC of Kerala has laid down some broad parameters that can govern the grant of permission for future guidance in Kerala State.
Broad guidelines
The parameters that govern the grant of permission by the criminal courts in the matter of issuance of passports to those involved in criminal proceedings pending in courts shall be as follows:
- The stage of the criminal proceeding and the duration of time within which the trial may take place;
- The criminal antecedents and past conduct of the accused;
- The nature and gravity of the crime; offences under Statutes dealing with acts of terrorism and acts of smuggling should require a different consideration.
- In heinous crimes, if the court decides to grant permission, the period for which permission is granted can be limited;
- Chances of the accused fleeing or evading the trial in the case;
- Mode in which the presence of the accused can be ensured during trial, including stipulating conditions like providing the address/ change of address in the country of residence abroad, either with the Indian Consulate at the country of residence abroad or with the Court where the trial is pending.
- Since in cases where time is not fixed by the Magistrate while granting permission, the Passport authorities are issuing passports only for one year, the period for which the accused can be permitted to travel can also be fixed by the Magistrate, while granting permission.
The parameters laid down as above are not exhaustive. While granting permission, the criminal courts will do well to bear in mind that the ultimate aim of granting permission is to balance the competing claims of fundamental right to travel abroad and the need to ensure the presence of the accused during trial.
Other reasonable safeguards to ensure the presence of the accused during trial can also be incorporated into the order granting permission, if the circumstances warrant it.
Judgements on impounding of passports
Registering a crime is not enough
That a criminal case is registered against a person is not enough to consider that a criminal case is pending against him for impounding the passport under Section 6 and 10 of the Passport Act [Muhammed v Union of India & Others: 2018 (4) KHC 945].
Family dispute turning into criminal cases not enough
A mere property dispute or family dispute masquerading as crimes cannot deprive a person of his or her fundamental right to travel. In such cases the Passport Officer must exercise his discretion in evaluating the gravity of the crime in deciding the impounding of the Passport [Jayan V.M @ Jayasoorya v. Union of India & Others: 2018 KHC 823].
Criminal courts can issue directions to provide passport
The criminal court has ample powers to issue directions for providing passport for a specific period. The Magistrate can fix the period for travelling abroad or even issue directions to issue the passport for a specific period [Mohammed Shafi v Regional Passport Officer: 2017 (2) KHC 484].
Magistrate has power to allow the application to travel abroad by imposing adequate safeguards for trial [Muhammed v State of Kerala: 2012 (4) KHC 553].
Trial court to decide the accused’s right to travel
The Court where the case is pending has to decide whether the applicant is entitled to get a passport and decide as to the period for which he is entitled to hold it.
The Court must keep it in mind that pendency of a criminal case shall not stand in the way or cause hindrance to decide the future of an applicant [Akhilesh v State of Kerala & Others: 2021 (2) KHC 752].
