In this article, Priya Venkatesun discusses How to prevent criminal/offender from escaping India.

After committing a crime, fleeing away from the country seems to be a feasible option to many offenders. This can be a major setback in realising the justice system of the country. Time and again criminals have left the country to escape prosecution. The country then had to extradite the person from the foreign land. A recent example would be the quest by India to extradite the business tycoon, Vijay Mallya. Extradition is a very cumbersome and expensive process for the country. Realising the adage “prevention is better than cure” this article deals with how to prevent criminals from escaping India. This would save the country from undergoing the procedure to extradite the person.

One way to prevent a criminal from escaping the country would be to impound the documents required for the person’s escape. “Impound” as defined in law is “to take possession of a document or thing for being held in custody in accordance with law”. Impounding documents required to leave a country will prevent a criminal to fly to another country. Passport is one such essential required to leave a country.

In case the person has a passport, all he needs to do is apply for visa in the other country. The home country might not know of such an application and if the visa is approved, the person may leave the home country. Many criminals have left the country to some other country, as leaving the country becomes easy once you have visa. Here comes the need to impound an offender’s passport.

Code of Criminal Procedure deals with Impounding of documents (Section 104). Passports Act, 1967 specifically deals with the impounding of passports (Section 10 (3)). Therefore, it can be established that the best way to prevent one from leaving the country would be by impounding his/her passport.

Situations when passport impounding may be important for offenders or someone whose presence is required for investigation/trial

When is it necessary to impound someone’s passport? To be called an offender, the person must be someone against whom a FIR or complaint is filed. Before that stage is reached, someone cannot be called an offender. However, their presence may be required to provide evidence before a court or to cooperate with the police during investigation.

At the same time, the right to go abroad enjoys constitutional protection, because it has been held to be a part of the Fundamental Right (which any person in India can enjoy) to life and personal liberty (Article 21 of the Constitution), as per the case of Satwant Singh Sawhney Vs. D. Ramarathnam. The only way it can be taken away is by a procedure established by law. This procedure established by law has been laid down in the Passport Act, 1967. The aim of the Act is “to provide for the issue of passports and travel documents, to regulate the departure from India of citizens of India and for other persons and for matters incidental or ancillary thereto.”

Hence, categories of people in respect of whom passport can presumably be impounded for criminal prosecution, investigation or evidence purposes are:   

1. People against whom FIR or complaint is filed
2. People against whom summons or warrant is issued
3. People who are not accused but who are required to be present as witnesses or cooperate with the investigative machinery
4. People against whom summons or warrant is issued and they are avoiding service of process
5. People against whom a criminal trial is underway and they are not arrested, or they have been released on bail
6. People who are released on probation (i.e. they are convicted and serving sentence)

Circumstances when passport can be impounded (of an accused or convicted person)

The passport can be impounded if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years (Section 10 (3) (d) Passports Act, 1967). It can also be impounded if proceedings 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. (Section 10 (3) (e) Passports Act, 1967), and if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made (Section 10 (3) (h) Passports Act, 1967). The law therefore has made provisions to check an offender or an alleged offender from leaving the country. A court can also revoke the passport or travel documents under this Act. Therefore, there is a law in place to keep a tab on criminals wanting  to escape the country.

Is it possible for people to commit a crime and leave the country before conviction?

According to Section 10 (3) (e) of the Passports Act, 1967, Passport Authority can impound a person’s passport if proceedings for an alleged offence are pending before a court. Therefore, leaving the country after committing a crime but before conviction can also be curbed.

Not all criminal’s passports are impounded by the passport authority. They impound the passport of a person only when it comes to their notice that the person is an offender satisfying conditions under 10 (3) of Passports Act. The court only has powers to revoke the passport (Section 10 (7) and Section 10 (8) Passports Act, 1967). The Hon’ble Supreme Court of India in Suresh Nanda vs. CBI observed that while the police may have the power to seize a passport under Section 102(1) Criminal Procedure Code, 1973, it does not have the power to impound the same.A person whose passport has been seized cannot travel outside the country. In Suresh Nanda’s case it was difference between seizure and impounding was stated. It said “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, then such retention amounts to impounding of the property/or document.” The same case also observed the power of  the police to seize the passport and its extent. It was stated in the said case “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.”

Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967. Neither the police nor the court can impound one’s passport, the only option is for the police to write to the passport authority. Once a notice along with the passport is sent to the passport authority by police, after a fair hearing from the other side, the passport authority on its discretion may impound the passport of the offender.

Impounding of passport has to be done by the passport authority. Therefore, many a time when the convict’s passport has not been revoked by the court, or impounded by the passport authority, it remains with him. Having a passport eases out the process of leaving the country. Then the person has a choice of leaving the country which he further exercises. Hence the necessity of impounding the passport is realised.