Yes, the passport can be released during ongoing criminal investigations in India, but it largely depends on the circumstances of the case, the seriousness of the charges, and the discretion of the court. Releasing a passport during a criminal investigation is considered a sensitive issue because of the risk of the accused absconding or hindering the investigation. Therefore, the court evaluates each case carefully before deciding whether to release the passport.
1. Legal Context of Passport Seizure in Criminal Cases
In India, passports can be seized by the court or law enforcement agencies under certain legal provisions, especially in criminal cases. Typically, the passport may be confiscated when:
- The accused is charged with serious offenses, and there is a concern that they might flee the country to evade trial.
- Bail conditions often include the surrender of the passport to ensure that the accused remains within the jurisdiction of the court.
- Investigations are at a crucial stage, and there is a risk that the accused might interfere with witnesses, destroy evidence, or abscond from legal proceedings.
The decision to release a passport is therefore guided by the balance between protecting the integrity of the criminal investigation and respecting the personal and professional needs of the individual involved.
2. Procedure for Releasing the Passport During Ongoing Investigations
Step 1: Filing an Application for Passport Release
If an accused or party whose passport has been seized requires the passport for a valid reason, they must apply to the court for its release. The application must clearly state:
- The purpose for which the passport is needed, such as urgent travel for work, medical reasons, or family obligations.
- Assurance of Cooperation: A guarantee that the applicant will cooperate fully with the investigation and return the passport to the court after the stated purpose is served.
Step 2: Hearing Before the Court
The court will schedule a hearing to assess the application. The prosecution, or the investigating agency, may oppose the release of the passport, especially if:
- The investigation is at a crucial stage and the passport is needed to prevent the accused from fleeing.
- There is risk of absconding, especially in serious cases like financial fraud, terrorism, or offenses under the Narcotic Drugs and Psychotropic Substances Act (NDPS).
- The accused has a history of non-cooperation or failure to comply with previous court orders.
In response, the accused must show genuine reasons for requiring the passport and provide assurances to the court that they will not misuse it.
Step 3: Court’s Discretion
The court’s decision to release the passport depends on various factors, including:
- Nature and Seriousness of the Charges: If the case involves serious criminal offenses, such as terrorism, financial fraud, or organized crime, the court is less likely to release the passport during ongoing investigations.
- Stage of Investigation: If the investigation is at an advanced stage, the court may release the passport, but if it’s at a sensitive or early stage, the court may refuse the request.
- Past Conduct of the Accused: If the accused has previously complied with all court orders and demonstrated good behavior, the court may be more inclined to allow the release of the passport.
- Undertaking by the Accused: Courts may require the accused to submit a written undertaking that they will return the passport after the specific purpose is completed and comply with future court proceedings.
Step 4: Conditions Imposed by the Court
If the court is convinced of the genuine need for passport release, it may allow it on certain conditions:
- Fixed Duration of Travel: The court may grant the passport for a limited period, ensuring that the accused returns the passport to the court upon their return.
- Travel Restrictions: The court may impose travel restrictions, such as allowing travel only to specific countries or regions.
- Surety or Bond: The accused may be required to deposit a bond or surety to the satisfaction of the court, ensuring that they will not abscond.
- Frequent Reporting to Authorities: In some cases, the court may ask the accused to report to local authorities or law enforcement agencies during the period of travel.
3. Relevant Legal Provisions
- Section 109 of the Bharatiya Nagarik Suraksha, 2023 (B.N.S.S): This provision allows the court to seize and retain documents (including passports) during investigations and trials. However, the court also has the discretion to release such documents if it deems fit, considering the merits of the application.
- Bail Conditions: As part of bail conditions under the B.N.S.S. or the NDPS Act, the court often requires the accused to surrender their passport, ensuring they do not flee the jurisdiction. The release of the passport must comply with these bail conditions.
4. Grounds for Releasing the Passport
When considering an application for the release of the passport, courts take the following factors into account:
- Urgency and Necessity of Travel: If the accused demonstrates that travel is essential for work-related obligations, medical treatment, or family emergencies, the court may take a lenient view.
- Non-Flight Risk: If the accused has strong roots in the country (family, business, or property), and there is little risk of absconding, the court may be more likely to release the passport.
- Cooperation with Investigation: If the accused has cooperated fully with the investigation and has attended all court hearings as required, the court may be inclined to grant the release of the passport.
- Undertaking to Return: Courts often look for a strong undertaking from the accused that they will return to India and surrender the passport after the specific purpose is fulfilled.
5. Case Laws on Passport Release During Investigations
Several cases highlight the discretionary powers of the court in deciding whether to release a passport during ongoing investigations:
- Kartar Singh v. State of Punjab (1994): In cases involving serious criminal charges, especially those affecting national security, courts have held that passports should not be released without strong justification.
- Sushil Kumar Jain v. Union of India (2007): This case demonstrated that courts could release the passport for a limited period if the accused demonstrates genuine reasons for travel and assures compliance with court orders.
6. Appealing a Denied Passport Release Application
If the court rejects the application for passport release, the applicant has the right to appeal to a higher court. The appeal must explain:
- The genuine need for passport release.
- Why the lower court’s decision should be reconsidered.
- Any additional facts or circumstances that were not previously presented.
7. FAQs
Q1. Can the passport be released for international travel during criminal investigations?
- Yes, if the court is satisfied that there is no risk of absconding and the accused has a legitimate reason for travel, the passport may be released for a limited period.
Q2. What happens if the accused fails to return the passport after release?
- Failure to return the passport may result in severe legal consequences, such as cancellation of bail, issuance of a non-bailable warrant, or confiscation of surety or bond deposited with the court.
Q3. Can the passport be released for medical treatment abroad?
- Yes, courts are generally more lenient when the passport is required for medical treatment abroad, provided sufficient medical documentation is submitted, and the accused guarantees their return.
Q4. Can the passport be released for work-related travel during ongoing investigations?
- Yes, but the accused must show compelling evidence of the necessity for travel, such as an employer’s letter or work contract. Courts usually impose strict conditions on such releases.
In conclusion, while the release of a passport during ongoing criminal investigations is possible, it is subject to the court’s discretion. The applicant must show valid reasons and provide sufficient assurance that they will not abscond or hinder the investigation, thereby ensuring the court’s trust in their compliance with the legal process.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304