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2025 DIGILAW 1572 (TS)

Imran Mohammed v. State Of Telangana

2025-11-20

TIRUMALA DEVI EADA

body2025
ORDER : 1. This Criminal Petition is filed seeking to quash the order, dated 28.07.2023, passed in Crl.M.P.No.2976 of 2023 in Crime No.51 of 2023 of SIT Police Station, CCS, Hyderabad (old Crime No.309 of 2022 of Nampally Police Station, Hyderabad), by the learned XII Additional Chief Metropolitan Magistrate, Hyderabad, and consequently, to release the passport of the petitioner. 2. Heard Sri Mohammed Amair Sohail, learned counsel for the petitioner and Sri Jithender Rao Veeramalla, learned Additional Public Prosecutor for respondent No.1-State. 3. Learned counsel for the petitioner submitted that the trial Court has erroneously dismissed the present petition filed by the petitioner, wherein the petitioner has prayed to grant interim custody of his passport to obtain visa to go to Umrah pilgrimage. He further submitted that the petitioner has deposited his passport before the Court in compliance of the conditions imposed while granting bail and that the petitioner is very much entitled to the custody of his passport. He further submitted that the passport cannot be impounded by any authority, but for the passport authority as laid down by the Honourable Apex Court in catena of judgments. He, therefore, prayed to set aside the impugned order, dated 28.07.2023, and grant interim custody of the passport of the petitioner. 4. Learned Additional Public Prosecutor submitted that the petitioner herein is a habitual offender and the trial Court has rightly dismissed the petition. He, therefore, prayed to dismiss the Criminal Petition. 5. Perused the record. 6. The petitioner herein is facing allegations under Sections 420 , 467, 468 and 120B of I.P.C. He is alleged to have created some fake documents and certificates and processed visas of students to study abroad. During pendency of the case, he was enlarged on bail, wherein one of the conditions imposed was to deposit his passport and he has complied with the same. Subsequently, he has filed the present petition seeking interim custody of his passport to facilitate him to get visa to go on Umrah pilgrimage. The trial Court, vide impugned order, dated 28.07.2023, dismissed the said petition. 7. In similar circumstances, a co-ordinate bench of this Court in Crl.P.No.4978 of 2025, dated 02.07.2025, held as under: “15. As seen from the above, Section 436(1) Cr.P.C. stipulates that when a person/accused of a bailable offence is arrested or detained without any warrant and is prepared to furnish bail, he shall be released on bail. 7. In similar circumstances, a co-ordinate bench of this Court in Crl.P.No.4978 of 2025, dated 02.07.2025, held as under: “15. As seen from the above, Section 436(1) Cr.P.C. stipulates that when a person/accused of a bailable offence is arrested or detained without any warrant and is prepared to furnish bail, he shall be released on bail. The language of the provision is mandatory and confers an absolute and indefeasible right to bail. The only discretion vested in the Court pertains to the amount of the bond or number of sureties; it does not extend to placing restrictions on personal liberty, such as confiscating or directing the deposit of a passport or imposing travel restrictions. 16. This statutory mandate was examined in depth by the Bombay High Court in Sultan Kamruddin Dharani v. Union of India (2008 SCC OnLine Bom 1347), wherein it was held that the Court cannot impose any conditions while enlarging a person on bail in a bailable offence which is not directly related to securing his appearance before the Court. In paragraph 19 of the judgment, the Court held that requiring the accused to surrender his passport or to seek permission before leaving India constitutes a restriction on liberty that defeats the absolute right to be set at liberty under Section 436(1) Cr.P.C. Such a condition is not a term as to bail, and hence ultra vires. 17. The Hon'ble Supreme Court in Suresh Nanda v. C.B.I. ( (2008) 3 SCC 674 ), laid down the principle that impounding of a passport is a function exclusively conferred on the Passport Authority under Section 10(3) of the Passports Act, 1967, and cannot be assumed or exercised by a criminal Court under Section 104 of Cr.P.C. The Court clarified the legal distinction between seizing and impounding, holding that impounding implies retention for a continuing period and that such retention cannot be done by Courts or police authorities without complying with the procedure established under the Passports Act. 18. Thus, the power to impound or retain a passport lies solely with the Passport Authority, and not with the criminal Courts, even if the passport is produced before them during proceedings. In the present case, it is not the case of the prosecution that any steps have been initiated under the Passports Act for impounding the passport of the petitioner. Thus, the power to impound or retain a passport lies solely with the Passport Authority, and not with the criminal Courts, even if the passport is produced before them during proceedings. In the present case, it is not the case of the prosecution that any steps have been initiated under the Passports Act for impounding the passport of the petitioner. Instead, the trial Court imposed a blanket restriction through a bail condition, thereby exceeding its jurisdiction and infringing upon the personal liberty of the petitioner. 19. The Hon'ble Supreme Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar ( AIR 1958 SC 376 ), and later in State of Gujarat v. Salimbhai Abdulgaffar Shaikh ( (2003) 8 SCC 50 ), reiterated that when the statute confers a right to bail in a bailable offence, no discretion vests with the Magistrate to refuse bail or to impose additional restrictions that are not statutorily prescribed. 20. Further, this Court notes that the trial Court imposed the said condition without recording any finding of flight risk or abscondence, and without invoking any provision of law authorizing the imposition of such terms. Even if such apprehensions existed, there are specific mechanisms available under law, such as: • Section 439(2) Cr.P.C. - for cancellation of bail; • Section 10(3)(e) of the Passports Act - for impounding by the Passport Authority; The trial Court, however, did not resort to any of these, and instead attempted to indirectly achieve what the law does not permit directly. 21. In the present case, the conditions were imposed at the time of granting bail by the trial Court, wherein the petitioner was directed to deposit his passport and were restricted from travelling abroad. However, the observations made in the judgment in Jivrajbhai Ramjibhai Patel v. State of Gujarat (Special Criminal Application No.1415 of 2017) relied upon by the respondent pertain to situations arising during the course of trial, where, if the prosecution genuinely apprehends that the petitioner may not attend the Court proceedings, it may approach the trial Court seeking appropriate directions. In contrast, at the initial stage of grant of bail in a bailable offence, as per the settled principles of law, the trial Court cannot impose such restrictive conditions. 22. While the concern of securing the presence of the accused during trial is legitimate, it cannot override a statutory right nor authorize judicial overreach. In contrast, at the initial stage of grant of bail in a bailable offence, as per the settled principles of law, the trial Court cannot impose such restrictive conditions. 22. While the concern of securing the presence of the accused during trial is legitimate, it cannot override a statutory right nor authorize judicial overreach. The Court is bound by the constitutional guarantee under Article 21, which mandates that liberty can be curtailed only in accordance with procedure established by law. Imposing extra-statutory conditions in a bailable case, where no statutory discretion exists, is clearly a violation of that mandate.” By observing so, the learned Single Judge has allowed Crl.P.No.4978 of 2025 by setting aside the conditions imposed by the trial Court asking the petitioner therein to deposit his original passport. 8. Thus, in view of the statutory position and the decisions of the Honourable Apex Court with regard to impounding of passport, it is held that the passport cannot be impounded by any other authority, but for passport authority of India. Therefore, the impugned order passed by the trial Court is erroneous. The trial Court ought to have allowed the petition and granted interim custody of the passport of the petitioner. The trial Court has no authority to retain the passport of the petitioner. Hence, the order, dated 28.07.2023, is liable to be set aside. 9. Accordingly, the Criminal Petition is allowed and the order, dated 28.07.2023, passed in Crl.M.P.No.2976 of 2023 in Crime No.51 of 2023 of SIT Police Station, CCS, Hyderabad (old Crime No.309 of 2022 of Nampally Police Station, Hyderabad), by the learned XII Additional Chief Metropolitan Magistrate, Hyderabad, is set aside and the trial Court is directed to grant interim custody of the passport to the petitioner. Miscellaneous Petitions pending, if any, shall stand closed.