Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Punjab and Haryana High Court: In a petition filed by the petitioner-accused challenging the order passed by the Additional Sessions Judge whereby anticipatory bail was granted to him along with a direction to deposit passports before the Trial Magistrate, a Single Judge Bench of Sumeet Goel, J., held that the discretionary power upon Criminal Courts of ordering for ‘deposit of passport’ as a bail condition ought not to be exercised in a rote or routine manner.
Accordingly, the Court modified the said anticipatory bail order by quashing the bail conditions of depositing passports.
Background
Respondent 2 lodged a criminal complaint against the petitioner along with others under Sections 307, 323, 452, 499, 500, 506, 511, 148 and 149 of the Penal Code 1860 (‘IPC’) alleging that in November 2018, the accused persons forcibly demolished the one Foundation (Thara) along with idols of Lord Shiva and his family in broad day light thereby intentionally hurting the religious sentiments of the respondent and other locality members. The said incident was video-graphed and reported to the Police, which allegedly failed to register an FIR and instead pressurized for compromise of matter.
Thereafter, the accused allegedly repeatedly abused, threatened and intimidated the complainant and his family including forcibly entering into his house and assaulting him physically, while claiming political influence. Despite repeated complaints and filing of an application under Section 156(3) of the Criminal Procedure Code 1973 (‘CrPC’) and a suit for permanent injunction, no effective was taken by the Police. Aggrieved, the criminal complaint came into existence.
On one hand, the Trial Magistrate summoned the accused for offences under Sections 323, 452, 500, 506, 511 and 149 of the IPC and on the other hand, the accused preferred an anticipatory bail plea before the Sessions Court which was granted and subjected it to condition of depositing their passports before the Trial Magistrate. Aggrieved by the said condition, the accused approached the High Court.
Analysis and Decision
The Court stated that the issue involved in the case at hand was whether or not the passport of the petitioners, which was deposited with the Court as a bail condition, ought to be directed to be released in the circumstances of the present case and whether a Court while granting bail, be it regular in non-bailable offences or anticipatory bail, could impose a condition to deposit passport upon the applicant or not.
The Court stated that for bailable offences, the right of the accused to be enlarged on bail is considered absolute and peremptory operating as a matter of entitlement and in such cases, the police officers concerned, arresting the accused, is duly obligated to facilitate the release of the arrested accused, on furnishing bail bonds. Conversely, for non-bailable offences, a prudent exercise of judicial discretion by the Criminal Courts is necessitated which is a solemn duty of profound deliberation considering several material factors. This deliberation mandates the Court to attain a balance by overarching interest of the society in the prosecution of criminal conduct against the constitutionally acknowledged mandate to shield an individual’s fundamental right of liberty from undue and disproportionate curtailment. The Court further stated that to adequately mitigate these potential risks, while recognizing the principle that unnecessary curtailment of liberty is not the general rule, the Courts are empowered to adjoin specific and enforceable conditions to the order of granting bail.
Further, the Court stated that by Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) for regular bail cases and by Section 482 of the BNSS for anticipatory bail cases, the legislature has conferred upon Criminal Courts, the prerogative discretion to impose conditions upon an accused being enlarged on bail. The Court stated that “This discretion is principally designed to sub-serve the overarching objective of ensuring the smooth, continuous and efficacious trajectory of investigation/trial, without unduly/disproportionately impinging upon the accused person’s right of Personal Liberty.”
The Court viewed that it is indubitable that the condition for deposit of passport ought not to be imposed in a mechanical manner while granting bail, whether regular or anticipatory. The terms ‘such condition’, ‘such other condition’, ‘any other condition’ ought to be interpreted considering that these terms have been deployed in the provisions which provide for ‘right of bail’ to the accused. Further, the Court stressed that the ambit of permissible conditions is strictly circumscribed by the ‘doctrine of proportionality’ and ‘reasonableness’. The power of ‘impounding a passport’ is exercised upon the fulfilment of specifically enumerated statutory grounds under section 10(3) of the Passport Act, 1967 (‘Passport Act’) and serves an objective inherently distinct from that of discretion exercised by a Court requiring ‘deposit of passport’ as a pre-condition for release on bail. The Court stated that the passport functions as an indispensable document of nationality and identity, the condition for its deposit should be predicated upon a considered assessment of objective parameters indicating a clear and imminent threat of flight risk or obstruction of justice, thereby ensuring that such condition adheres strictly to the doctrine of proportionality
Thus, the imposition of a restrictive covenant mandating ‘depositing of passport’ by a Criminal Court is fundamentally rooted in its inherent and statutory power to regulate liberty of an under-trial accused and in absence in any express statutory prohibition contained either in the Passport Act or the BNSS, the said Court’s discretion to impose such a measure is governed by the Court’s aim to ensure uninterrupted attendance of the accused before it and to mitigate any substantial flight risk. The said discretionary power of ordering for ‘deposit of passport’ ought not to be exercised in a routine manner. While directing for deposit of passport as a bail condition, such order does not amount to impounding or seizure of the said passport.
The Court stated that a passport is not merely a travel document but is often used as proof of nationality and identity. Hence, an order for ‘deposit of passport’, as a pre-condition for bail, is justifiable only based on objective factors indicating a clear and imminent threat to the administration of justice and must not be employed as punitive measure against an under-trial accused, who is presumed innocent until proven guilty.
The Court noted that the accused persons were extended to the concession of anticipatory bail way back in 2019 and no instance of misuse of the same was brought forward. Thus, the Court directed modification of bail condition. The Court modified the Additional Sessions Judge’s order by quashing the conditions imposed upon the petitioners for surrendering their passports before the Trial Magistrate. However, the Court directed the petitioners to seek prior permission from the Trial Magistrate mandatorily, before leaving the country.
[Ram Lubhaya v. State of Punjab, 2025 SCC OnLine P&H 18390, decided on 19-12-2025]
Advocates who appeared in this case :
For the Petitioners: Sandeep Arora, Advocate
For the Respondent: Adhiraj Singh Thind, AAG Punjab and Dheerja, Advocate