‘Judge not wholly free, can’t innovate at pleasure’: Punjab and Haryana High Court cautions against routine passport surrender as bail condition

The accused persons were summoned in a criminal complaint alleging that they acted in conspiracy and demolished the one Foundation (Thara) along with idols of Lordshiva and his family in broad daylight, thereby hurting the religious sentiments of the complainant and other locality members.

Justice Goel also underlined that the passport is not merely a “travel document” but is used as proof of “nationality and identity”.

The court observations in a nutshell. (Image generated using AI)

The court, in its December 19 order, modified the bail order by setting aside the condition requiring surrender of passports and directed the release of the passports of the petitioners without any requirement of depositing them before the trial court.

‘Judge is free, is still not wholly free’

The court, while looking into the discretionary power of the court in imposing bail conditions, also referred to an old age adage which says:

“A judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence”.

It was further observed by the court that a judge should exercise discretion which is informed by “tradition, methodised by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life”.

“Wide enough in all conscience is the field of discretion that remains,” the court added.

Deposit passport, impounding passport

Justice Goel also stated that the judicial imposition of a requirement to ‘deposit a passport’, which constitutes a regulatory measure, is different from the statutory power of ‘impounding a passport’.

The ‘impounding a passport’, the court highlighted, is exclusively governed by Section 10(3) of the Passport Act, 1967, and vested solely with the designated Passport Authority.

It was further pointed out that the court’s directive to ‘deposit a passport’ does not, in law, tantamount to the “seizure or impounding” of the passport under the Passport Act, 1967.

‘Neither fathomable nor desirable

It was neither “fathomable nor desirable”, the court said, to adopt a straightjacket formula in imposing the pre-conditions of depositing a passport and pointed out that it should be exercised in accordance with the principles of “justice, equity and good conscience”.

It was also underlined by the court that the criminal court’s authority to impose conditions of “deposit of passport” should not be exercised in a “rote or automatic manner” and rather must stem from a deliberative assessment of a peculiar factual matrix of each individual case.

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