Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 1118 (GUJ)

AJIT ANNU KAMATH v. DEPUTY DIRECTOR

2015-10-28

J.B.PARDIWALA

body2015
JUDGMENT : J.B. PARDIWALA, J. 1. By this writ application, the applicant an accused of a complaint under the Prevention of Money Laundering Act, 2002 (for short, ‘the P.M.L.A.’), has prayed for the following relief: “13(A) That the Hon’ble Court may be pleased to issue an appropriate writ, order or direction for setting aside the conditions imposed by Ld. Sessions Judge, Ahmedabad while issuing summons vide order, dated 18-07-2014 on the receipt of the complaint filed by respondent no.1 herein which came to be registered as PMLA complaint No.3 of 2014, in view of peculiar facts and circumstances of the case stated above; or (B) That any just and proper order may be passed.” 2. It is the case of the applicant that he is engaged in the business of manufacturing Pharmaceutical ingredients. The company manufactures bulk drugs which includes the life saving drugs for the treatment of Cancer. A complaint was received by the Crime Branch, Surat from the ICICI Bank against one M/s. R.A. Distributors Private Limited and its directors alleging that the firm had prepared seventeen fake bills of entries and the same were presented before the ICICI Bank for the outward remittance. The District Crime Branch, accordingly, registered an F.I.R. dated 11th April, 2014 for the offence punishable under Sections 420, 465, 467, 468, 471 and 477(A) of the Indian Penal Code, including Section 120B of the Indian Penal Code. 3. The registration of the F.I.R. led to a case being registered bearing E.C.R. No.1 of 2014 by the Directorate of Enforcement, Surat, for the offence of money laundering under the P.M.L.A. 4. A complaint was filed before the Designated Court at Ahmedabad (Rural) Mirzapur against the applicant herein and other co-accused for the offence punishable under Section 3 of the P.M.L.A. 5. The designated Court took cognizance upon the complaint and passed an order of issue of summons to the applicant herein as one of the accused persons with a direction to furnish solvent security of Rs.50,000/- and further to surrender the passport, if any. The impugned order reads thus:- “ORDER Complaint be registered as PMLA case, against all the accused for the offence punishable u/s. 3 and 4 of the Prevention of Money Laundering Act, 2002. Accused No.1 and 2 be informed about lodging as well as the next date of hearing of complaint. The impugned order reads thus:- “ORDER Complaint be registered as PMLA case, against all the accused for the offence punishable u/s. 3 and 4 of the Prevention of Money Laundering Act, 2002. Accused No.1 and 2 be informed about lodging as well as the next date of hearing of complaint. Issue Summons against accused No.3 to 79, for the above offence, with direction that they shall deposit their passport in the present Court and shall also furnish security for Rs.50,000/- before this Court. Summons returnable on 02.08.2014.” 6. The challenge in this petition is to that part of the impugned order whereby the petitioner herein was directed to deposit his passport. 7. The principle argument of the learned counsel appearing for the petitioner is that while issuing summons, the designated Court concerned could not have directed the accused to surrender his passport. According to the learned counsel, the designated Court could have only directed the accused to furnish solvent security which has been furnished by the petitioner herein. 8. The learned counsel would submit that the impugned order travels beyond the jurisdiction of the Court as the same is contrary to the provisions and forms set forth in the Second Schedule of the Criminal Procedure Code, 1973. It has been pointed out that by virtue of Section 476 of the Cr.P.C., several forms for different aspects are set forth in the Second Schedule. Sections 61, 206 and 245 of the Cr.P.C. deal with the issue of summons and the forms Nos.1, 30 and 33 pertain to the summons. 9. The learned counsel further pointed out and relied on the provision of Section 88 of the Cr.P.C. which deals with the power to take bond for the appearance. It has been submitted that while issuing summons in the form as prescribed under Section 61 of the Cr.P.C., the imposition of a condition other than furnishing of the necessary security, is not warranted. The same is permissible only in the case of a warrant of arrest. Under Section 70 of the Cr.P.C., such conditions are imposed and warranted. It has been submitted that while issuing summons in the form as prescribed under Section 61 of the Cr.P.C., the imposition of a condition other than furnishing of the necessary security, is not warranted. The same is permissible only in the case of a warrant of arrest. Under Section 70 of the Cr.P.C., such conditions are imposed and warranted. The learned counsel further submitted that Section 88 of the Cr.P.C. empowers the Court to ask the person, who is present in the Court pursuant to the summons or warrant, to execute a bond, with or without surety, but it does not empower the Court to impose a condition of depositing or surrendering of his passport, if any. 10. In such circumstances referred to above, it is prayed that the impugned order to the extent it directed the petitioner to surrender his passport deserves to be quashed and the passport be ordered to be handed over to the petitioner. 11. On the other hand, this application has been vehemently opposed by Mr. K.L. Pandya, the learned Additional Public Prosecutor appearing for the respondent – State of Gujarat. He submitted that no error, not to speak of any error of law could be said to have been committed by the Court in directing the petitioner to surrender his passport. He prayed that there being no merit in this petition, the same be rejected. 12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Court committed any error in passing the impugned order. 13. It is not in dispute that the petitioner herein – original accused No.14 is charged with a very serious offence of money laundering punishable under the P.M.L.A., 2002. The money laundering as alleged is to the tune of crores of rupees. 14. Since manifold contentions have been raised as regards the power to impose such condition, let me look into some of the provisions relied upon by the learned counsel. 15. Section 61 of the Cr.P.C. reads as under:- “61. The money laundering as alleged is to the tune of crores of rupees. 14. Since manifold contentions have been raised as regards the power to impose such condition, let me look into some of the provisions relied upon by the learned counsel. 15. Section 61 of the Cr.P.C. reads as under:- “61. Form of summons-Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by the rule direct, and shall bear the seal of the Court.” 16. Section 206 of the Cr.P.C. reads as under:- “206. Special summons in cases of petty offence- (1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under section 260 b [or section 261,] the Magistrate shall, except where he is, for reasons to be recorded in writing, of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorise in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader: Provided that the amount of the fine specified in such summons shall not exceed c [one thousand rupees.] (2) For the purposes of this section, "petty offence" means any offence punishable only with fine not exceeding one thousand rupees, but does not include any offence so punishable under the Motor Vehicles Act, 1939 (4 of 1939), or under any other law which provides for convicting the accused person in his absence on a plea of guilty. [(3) The State Government may, by notification, specially empower any Magistrate to exercise the powers conferred by sub-section (1) in relation to any offence which is compoundable under section 320 or any offence punishable with imprisonment for a term not exceeding three months, or with fine, or with both where the Magistrate is of opinion that, having regard to the facts and circumstances of the case, the imposition of fine only would meet the ends of justice.] 17. Section 476 of the Cr.P.C. reads as under:- “476. Forms Subject to the power conferred by Article 227 of the Constitution, the forms set forth in the Second Schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.” 18. Section 244 of the Cr.P.C. reads as under:- “244. Evidence for prosecution (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.” 19. The Second Schedule to the Cr.P.C. provides for the different forms. Form No.1 reads as under:- “FORM NO.1M SUMMONS TO AN ACCUSED PERSON (See section 61) To …..................(name of accused) of …………..............(address) WHEREAS your attendance is necessary to answer to a charge of …......................... (state shortly the offence charged), you are hereby required to appear in person (or by pleader, as the case may be) before the (Magistrate) of …................on the …........day of .................Herein fail not. Dated, this …...............day of ….......... 20 …….. (Seal of the Court) (Signature)” 20. Form No.30 reads as under:- “FORM NO.30 SPECIAL SUMMONS TO A PERSON ACCUSED OF A PETTY OFFENCE (See section 206) To ………….....(Name of the accused) of …...................(address) WHEREAS your attendance is necessary to answer a charge of a petty offence ….....................(state shortly the offence charged), you are hereby required to appear in person (or by pleader) before (Magistrate ) of on the …….day of 20.... , or if you desire to plead guilty to the charge without appearing before the Magistrate, to transmit before the aforesaid date the plea of guilty in writing and the sum of rupees as fine, or if you desire to appear by pleader and to plead guilty through such pleader, to authorise such pleader in writing to make such a plea of guilty on your behalf and to pay the fine through such pleader. Herein fail not. Dated, this ………..... day of ……....,19. (Seal of the Court) (Signature) (Note.-The amount of fine specified in this summons shall not exceed one hundred rupees.)” 21. Form No.33 reads as under:- “FORM NO.33 R/SCR.A/4860/2015 JUDGMENT SUMMONS TO WITNESS (See sections 61 and 244) To…........ of …........ WHEREAS complaint has been made before me that …....................(name of the accused) of ………………….....(address) has (or is suspected to have) committed the offence of ………….........(state the offence concisely with time and place), and it appears to me that you are likely to give material evidence or to produce any document or other thing for the prosecution; You are hereby summoned to appear before this Court on the …...............day ……...of next at ten o'clock in the forenoon, to produce such document or thing or to testify what you know concerning the matter of the said complaint, and not to depart thence without leave of the Court; and you are hereby warned that, if you shall without just excuse neglect or refuse to appear on the said date, a warrant will be issued to compel your attendance. Dated, this ……...day of ……...,19. (Seal of the Court) (Signature)” 22. Let me now consider whether Section 88 of the Cr.P.C. has any application so far as the case in hand is concerned. 23. Chapter VI of the Code deals with the process to compel the appearance. Part A deals with the ‘summons’, Part B deals with the ‘warrant of arrest’, Part C deals with the ‘proclamation and attachment’ and Part D deals with the ‘other rules regarding processes’. Section 88 falls in Part D of the said Chapter, according to which, if an accused is present in the Court and for whose appearance or arrest, the Court is empowered to issue a summons or warrant, then the Court may require such person to execute a bond for appearance. 24. Section 88 falls in Part D of the said Chapter, according to which, if an accused is present in the Court and for whose appearance or arrest, the Court is empowered to issue a summons or warrant, then the Court may require such person to execute a bond for appearance. 24. Section 88 of the Cr.P.C. provides for power to take bond for appearance. Section 88 reads as under:- “88. Power to take bond for appearance- When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other court to which the case may be transferred for trial.” 25. I am of the view on careful reading of Section 88 referred to above that it does not apply to the case in hand. The section indicates that if a person is present in a Court in connection with a case or otherwise, and the officer presiding in the Court is entitled to issue summons or warrant to secure his presence, then he may direct that person to execute a bond for his presence in his Court at a later date or to secure his presence in some other Court, notwithstanding the fact that his presence in the Court, at the relevant point of time, is not in connection with that case, for which, he is being bound over. That is to say, if a person required to be arrested or detained in connection with some other case, either before him or elsewhere is present in his Court, then the Presiding Officer in whose Court he is present, has the power to issue a warrant calling upon him to execute a bond for his appearance in future. In the case in hand, no such situation arose, and Section 88, therefore, will have no application. Section 88 of the Code is an enabling provision which vests a discretion in the Magistrate to exercise power under the said section asking the person to execute a bond for appearance only in bailable cases or in trivial cases and it cannot be resorted to in a case of serious offences. Section 88 of the Code is an enabling provision which vests a discretion in the Magistrate to exercise power under the said section asking the person to execute a bond for appearance only in bailable cases or in trivial cases and it cannot be resorted to in a case of serious offences. Section 436 of the Code itself provides that the bond may be asked for only in cases of bailable offences. 26. In the case in hand, the presence of the accused i.e. the applicant herein was secured in pursuance to the summons issued by the designated Court in the very case he was asked to appear. As long as the warrant was not issued to the applicant and the applicant accused presented himself along with his advocate in response to the summons, as such was not need for the designated Court to have asked the accused applicant to furnish security of Rs.50,000/- ( Rupees Fifty Thousand only) and also to surrender his passport before the trial Court. 27. I am of the view that there is no provision in the Criminal Procedure Code which empowers the Court, be it the Court of a Magistrate or a designated Court under any special enactment to furnish surety, and, more particularly, ask the accused concerned to deposit his passport while issuing summons. It is well settled that the Court concerned is empowered to issue summons for the attendance of the accused in a summons case or in a warrant case. Even in a warrant case, it is within the discretion of the Court to issue summons for causing the accused to be brought or to appear at a certain time before the Court. If a warrant is issued, bailable or non-bailable, as the case may be, then there is no difficulty in asking the accused to furnish the necessary security and it would also be within the power of the Court concerned to impose a condition in the bail bond, like deposit of the passport. 28. In the case in hand, a very unusual procedure could be said to have been adopted by the designated Court. The Court thought fit to issue summons, but at the same time also, asked the accused to furnish surety of Rs.50,000/- and surrender of his passport. 28. In the case in hand, a very unusual procedure could be said to have been adopted by the designated Court. The Court thought fit to issue summons, but at the same time also, asked the accused to furnish surety of Rs.50,000/- and surrender of his passport. In the form of summons referred to above, there is no reference so far as directing the accused to furnish surety and deposit of his passport is concerned. 29. If the Court is of the view having regard to the serious nature of the offence, like the one under the Money Laundering Act, that it would be in the interest of justice to direct the accused to furnish surety and also direct him to surrender his passport with a view to see that he may not flee away, and thereby, put a fair trial in peril, then it would be advisable to issue a bailable warrant, as straightway a non-bailable warrant ordinarily should not be issued. However, in the case in hand, while issuing summons to the accused, the Court could not have asked the accused to furnish surety and direct him to deposit the passport. 30. There is one additional aspect of the matter. Could it be said that once summons is issued and the accused appears before the Court in response to the said summons, even thereafter, at no point of time, the Court concerned will have the power to ask the accused to furnish surety and impose a condition of depositing of the passport? The answer has to be in the negative. The Court would be within its power after the accused appears in response to the summons having regard to the facts and circumstances of the case, to ask him to furnish the necessary surety and also ask him to surrender his passport. There is nothing illegal if such procedure is adopted. However, in the order of the summons having regard to the form, there cannot be a condition of furnishing of the solvent surety and depositing of the passport. It sounds a bit hyper technical, but the question is of power and procedure. 31. There is nothing illegal if such procedure is adopted. However, in the order of the summons having regard to the form, there cannot be a condition of furnishing of the solvent surety and depositing of the passport. It sounds a bit hyper technical, but the question is of power and procedure. 31. Section 476 of the Cr.P.C. referred to above earlier in the judgment states that subject to the power conferred by the Article 227 of the Constitution of India, the forms set forth in the second schedule, with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient. Under Article 227 (1) of the Constitution, the High Court, as a general power of supervision over the subordinate Courts and in exercise of that power, it can prescribe forms to be used by the subordinate Court unless and until there is a variation in the forms, it would not be open for the Court to travel beyond what has been stated in the forms. Again the question would be having regard to the provisions under the Cr.P.C. and the power, if any, of the Court whether the High Court, in exercise of its power under Article 227 (1) of the Constitution, can add something in the forms by way of variation which is otherwise not provided by the Code of Criminal Procedure. 32. I agree to a certain extent with the learned counsel appearing for the applicant that when a person is made to surrender his passport, it curtails his right of movement beyond the country. 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 power to impound a passport is given to the passport authority under the Passports Act. Even after the enactment of the Act, in view of Article 21 of the Constitution, the right to travel abroad is encompassed in the right to personal liberty which cannot be deprived, except according to the procedure established by the law. However, the law is well settled that the right to travel abroad could be deprived by a procedure established by law. However, the law is well settled that the right to travel abroad could be deprived by a procedure established by law. Section 437(3) of the Cr.P.C. required and enabled the criminal Court while releasing a person accused or suspected of commission of a non-bailable offence to impose a condition that such person shall attend in accordance with the conditions of the bond executed under the Code. It is within the power of the criminal Court while releasing the person accused or suspected of commission of a non-bailable offence on bail under Section 437 or 439 of the Code, as the case may be, to impose conditions that such person shall surrender his passport in the Court. 33. In the case in hand, if I go strictly by law, then probably, it could not be said that the procedure by which the accused is made to surrender his passport, was not in accordance with law. 34. I am conscious of the fact that the offence under the Money Laundering Act is a very serious one and the Court should take all possible steps available in law to ensure that the trial is not jeopardized in any manner and, for the purpose of ensuring the same, to impose appropriate conditions, which may include the surrender of passport and furnishing of the surety. As stated above, if a bailable warrant would have been issued, then there would have been no problem. 35. The next question is whether on the facts of the present case, interference is required. 36. I am of the view having regard to the fact that the applicant is an accused of the offence under the Money Laundering Act, which is a serious offence the passport should remain in the custody of the trial Court. The accused has already furnished a solvent surety of Rs.50,000/- when he appeared in the Court for the first time in response to the summons. 37. I take notice of the fact that the accused is a businessman and has to travel quite often to different countries. In the past, this Court had permitted him to travel abroad subject to certain terms and conditions, which were abided by him. As on date, the passport is with the applicant accused. The applicant accused is directed to surrender his passport within a period of fifteen days from today. In the past, this Court had permitted him to travel abroad subject to certain terms and conditions, which were abided by him. As on date, the passport is with the applicant accused. The applicant accused is directed to surrender his passport within a period of fifteen days from today. It is clarified that in future, if the applicant wants to travel abroad, it will be open for him to prefer an appropriate application before the Court concerned for release of the same subject to certain terms and conditions. If any such application is filed before the trial Court, then the trial Court shall consider the same expeditiously and pass appropriate orders of release of the passport subject to the terms and conditions which it deems fit. 38. Mr. Shah, the learned counsel appearing for the applicant seriously debated the power of a Court to impose a condition of surrender passport in the Court. In support of his submission, he placed strong reliance on the decision of the Supreme Court in the case of Suresh Nanda vs. C.B.I. [ AIR 2008 SC 1414 ]. The Supreme Court therein made the following observations in paras 11, 12, 13, 14 and 15:- “11. Learned Additional Solicitor General has submitted that the police has power to seize a passport in view of Section 102(1) of the Cr.P.C. which states :- "Power of police officer to seize certain property : (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence". In our opinion, while the police may have the power to seize a passport under Section 102(1), Cr. P. C., 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. 12. It may be mentioned that 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 possession. Thus, seizure is done at a particular moment of time. 12. It may be mentioned that 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 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, when such retention amounts to impounding of the property/or document. In the Law Lexicon by P. Ramanatha 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. 13. Hence, while the police may have power to seize a passport under Section 102, Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., 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, Cr.P.C.), 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. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa v. Binapani Dei ( AIR 1967 SC 1269 ). 14. In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport Authority under Section 10(3). 15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104, Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a "passport" is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr. P. C. is a general law. It is well settled that the special law prevails over the general law vide G. P. Singh's Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim "Generalia special bus non derogant". Hence, impounding of a passport cannot be done by the Court under Section 104, Cr.P.C. though it can impound any other document or thing.” 39. On the other hand, the learned standing counsel appearing for the respondent No.1 contends that it is within the power of the Court while granting bail in a non-bailable offence to impose a condition to ensure the presence of the accused in the course of the investigation, inquiry or trial that he shall surrender his passport. The learned standing counsel submits that the offence under the Money Launder Act is cognizable and non-bailable. The learned counsel further submitted that the offence under the Money Laundering Act is triable by a special Court as provided under Section 44 of the Act, 2002. 40. The learned standing counsel invited my attention even to Section 437 (3) of the Cr.P.C., which reads as under:- “437. When bail may be taken in case of non-bailable offence (1) …... (2) …... 40. The learned standing counsel invited my attention even to Section 437 (3) of the Cr.P.C., which reads as under:- “437. When bail may be taken in case of non-bailable offence (1) …... (2) …... (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary-(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interests of justice.” 41. Even in the case of non-bailable offences other than falling under sub-section (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. 42. 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". 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 man. 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 of 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. 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. 43. 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) 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. 44. The Supreme Court in Suresh Nanda's case (supra) was not considering 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 was only considering the scope and ambit of Section 104 of the Code which said; "Any court may, it is thinks fit, impound any document or thing produced before it" under the code. The power under Sec.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 the Supreme Court considered the distinction between "seizing" and "impounding" and held that impounding is of the document which is seized. 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 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 allowed the application. That order was set aside by the High Court in revision. The Supreme Court set aside the order of the High 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". 45. Thus, the right to travel abroad could be deprived of a procedure established by law. It would be within the power of the Court concerned to impose a condition that such person shall attend in accordance with the conditions of the bond executed under Chapter XXXIII of the Code. 46. In taking the aforesaid view of the matter, I am supported by a judgment rendered by a learned Single Judge of the Kerala High Court in the case of A.V. Mohammed Rafeek v. the Union of India and others [2011 Cri. Law Journal 4856]. 46. In taking the aforesaid view of the matter, I am supported by a judgment rendered by a learned Single Judge of the Kerala High Court in the case of A.V. Mohammed Rafeek v. the Union of India and others [2011 Cri. Law Journal 4856]. In the said case, the learned Single Judge, after discussing the Supreme Court decision in the case of Suresh Nanda (supra) observed as under :- I stated that 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 every day on which any investigation or trial is held with regard to such charge, and in case of my making default therein........." 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." (See Bijayaketan Mohanty v. State of Orissa [1982 Crl.L.J. 1954] 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 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. The Supreme Court in Hazarilal Gupta v. Rameswar Prasad and another [ AIR 1972 SC 484 ] has held that sections 496, 497, and 498 of the (old) Code are not exhaustive of powers of the court in regard to terms and conditions of bail particularly when the High Court dealt with cases of that type, it was within the power of court to direct surrender of passport and that if the appellant (in that case) wanted to retain the passport the court might not have granted him bail. Viewed in that line, I am to hold that it is within the power of the criminal court while releasing a person accused or suspected of commission of a non-bailable offence on bail under Sec.437 of the Code to impose a condition that such person shall surrender his passport in court. The power granted by the Code under Sec.437 of the Code to impose conditions including restriction on movement while granting bail in non-bailable offence can be taken as procedure established by law as stated in Article 21 of the Constitution. In that view, with great respect I disagree with the view expressed in Pushpal Swarnkar's case. 12. 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. 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 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.” 47. Thus, I am not impressed by the submission of the learned counsel appearing for the applicant accused that the Court has no power to impose such a condition of surrender of the passport while releasing the accused on bail. 48. My final conclusion is as under:- (1) The Court, be it a Court of the Magistrate or a designated Court under any special enactment, if deems fit to issue summons to the accused, then, in such circumstances, it cannot ask the accused to furnish surety and deposit of the passport. (2) Once the applicant accused appears before the Court along with his counsel in response to the summons, and thereafter, if the Court is of the view that the accused should be asked to furnish solvent surety as well as surrender of his passport, then it would be within its power to do so. (2) Once the applicant accused appears before the Court along with his counsel in response to the summons, and thereafter, if the Court is of the view that the accused should be asked to furnish solvent surety as well as surrender of his passport, then it would be within its power to do so. (3) In an offence, like one under the Money Laundering Act, if the Court concerned is of the view that the accused should be asked to furnish surety and should also be asked to deposit his passport, then the Court should consider issuing a bailable warrant so that when the accused appears and furnishes the surety, he could be said to have been released on bail and a condition for surrender of the passport can also be imposed. It is true that it would be within the discretion of the Court whether to issue summons or warrant, but the Court should consider the complaint in details and the nature of the charge. The normal practice so far the Courts in the State of Gujarat is concerned and, more particularly, in a private complaint while issuing summons, the accused is not asked to furnish any surety or deposit of the passport. In the rarest of the rare case and that too in the course of the trial, if the complainant points out that the accused is likely to abscond, then the Court may consider imposing appropriate conditions or ask for surety after an appropriate police inquiry in that regard. However, in an offence, like one under the Money Laundering Act, the Court should be very careful and there is nothing wrong if the accused is asked to furnish a solvent surety and also deposit of his passport, but the same should be in accordance with law and the procedure prescribed thereunder. 49. In view of the aforesaid discussion, without disturbing the impugned order and with the necessary clarification, this application is disposed of. Petition disposed of.