Do we need permission to travel abroad pending prosecution?

The right to travel abroad is a fundamental right recognized by the Supreme Court in Maneka Gandhi’s Case[1]. However, the said right is not an absolute one as it is subject to reasonable restriction. The reasonable restriction to travel abroad has taken its shape under the Passport Act, 1967.

One of such restrictions is the refusal to issue the passport or travel documents by the authorities under the Passport Act to an applicant against whom there is pending a criminal proceeding before any Court in India. The relevant portions of the Sections are extracted herein below for ease in reference:

Section 5. Applications for passports, travel documents, etc., and orders thereon.

… (2) On receipt of an application under this section, the passport authority, after making such inquiry, if any. as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,- …

… (c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement. …

Section 6. Refusal of passports, travel documents. etc.

… (2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely: – …

… (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India; …

The recourse available to the accused person is to approach the jurisdictional court and prefer an application seeking permission to travel abroad along with the affidavit as contemplated in Notification No. GSR 570(E) dated 25.08.1993 read with Office Memorandum dated 10.10.2019, Ministry of External Affairs.

Impounding of Passport

Impounding of passport falls within the exclusive domain of the concerned authorities under Sec. 10(3), the Passport Act. Neither the investigation agency nor the court can impound passport.[2]

Though Sec. 102 CrPC confers power on the investigation agency to seize any incriminating documents, the said power cannot be expanded to include impounding. The demarcating line for seizing and impounding is retention of document. Upon seizure of passport by the investigation agency, the proper recourse is to forthwith send the passport to the authorities concerned under the Passport Act to initiate proceedings for impounding the passport. Even the Court cannot impound passport under Sec. 104 CrPC. The Court may in its bail condition or otherwise direct the authorities concerned under the Passport Act to initiate proceedings for impounding of a passport.[3] 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.[4] It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party.[5]

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[1] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[2] Suresh Nanda v. Central Bureau of Investigation, (2008) 3 SCC 674.

[3] C.Ramesh Babu v. State, Crl. R.C. No. 19/2018, 26.02.2018, Madras High Court.

[4] Suresh Nanda, supra note 2.

[5] State of Orissa v. Binapani Dei, AIR 1967 SC 1269.