A significant precedent has been set by the Bombay High Court in clarifying that a convicted accused, even while serving a life sentence pending appeal, may apply for a passport if bail conditions permit, provided the passport is surrendered immediately upon issuance. The judgment balances individual rights under the Passport Act with the state’s interest in ensuring compliance with judicial orders.
Background & Facts
The Dispute
The applicant, Sachin Bhanudas Kotkar, was convicted by the Additional Sessions Judge, Nashik on 11.04.2016 under Section 302 read with Section 34 of the Indian Penal Code, 1860, for murder, and sentenced to life imprisonment with a fine of Rs. 5,000. He was released on bail by the Trial Court during the pendency of trial, with a condition to surrender his passport to the Investigating Officer and not leave India without court permission. He appealed the conviction before the Bombay High Court, which admitted the appeal on 13.01.2020 and granted him bail pending appeal, with the express condition that he shall not leave India without prior permission of this Court.
Key Facts
- The applicant was never in possession of a passport at the time of his arrest or during trial.
- No condition was imposed by the High Court during bail grant on 13.01.2020 requiring the applicant to deposit a passport, as none existed.
- The applicant has no prior criminal record beyond the present conviction.
- The applicant seeks a 10-year validity passport for legitimate personal purposes, including medical treatment abroad for a family member.
- The applicant has fully complied with all bail conditions since 13.01.2020.
Procedural History
- 11.04.2016: Conviction and sentencing by Additional Sessions Judge, Nashik in Sessions Case No. 62 of 2014.
- 13.01.2020: Bombay High Court admitted Criminal Appeal No. 360 of 2016 and granted bail pending appeal, with condition: no travel abroad without court permission.
- 25.08.1993: Government of India issued GSR 570(E) under the Passport Act, 1967, restricting passport issuance to persons against whom criminal proceedings are pending.
- 16.01.2026: High Court permitted addition of Regional Passport Office as a party respondent.
- 16.03.2026: Interim Application No. 2591 of 2025 heard and decided.
Relief Sought
The applicant sought permission to apply for a 10-year passport and, upon issuance, to retain possession of it during the pendency of his appeal, subject to compliance with bail conditions.
The Legal Issue
The central question was whether Section 6(2)(f) of the Passport Act, 1967, read with GSR 570(E) dated 25.08.1993, absolutely bars a convicted accused on bail pending appeal from applying for a passport, or whether judicial bail conditions may override such administrative restrictions.
Arguments Presented
For the Appellant/Petitioner
Counsel Ms. Tanvi Tapkire argued that the applicant does not possess a passport and has never been prohibited from applying for one. She contended that GSR 1993 applies only when criminal proceedings are pending, not when a conviction has been recorded and the matter is before the appellate court. She emphasized that the applicant has been granted bail with specific conditions, including no travel without permission, and that the passport, if issued, would be immediately surrendered. She cited K. Veeraswami v. Union of India to underscore that bail conditions, once imposed by a superior court, prevail over general administrative rules.
For the Respondent/State
Dr. Dhanalakshmi Krishnaiyer, APP, and Mr. D.P. Singh, SPP, opposed the application, relying on GSR 570(E) dated 25.08.1993, which mandates refusal of passport to any person against whom criminal proceedings are pending before a court in India. They argued that the applicant remains a convicted person under appeal, and the pendency of appeal constitutes pending proceedings under the GSR. They contended that the Passport Authority has no discretion to issue a passport unless the court explicitly lifts the restriction under Section 6(2)(f).
The Court's Analysis
The Court observed that while GSR 570(E) imposes a general bar on passport issuance during pending criminal proceedings, it does not contemplate the scenario where a court has already granted bail with specific conditions that inherently control international travel. The Court distinguished between the administrative bar under GSR and the judicial control exercised through bail conditions.
"The condition imposed by this Court on 13.01.2020 that the applicant shall not leave India without prior permission of this Court is a judicial order of higher authority than the administrative guidelines under GSR 570(E)."
The Court held that the applicant’s application for a passport is not an attempt to circumvent the law but a legitimate request to obtain a travel document, subject to immediate surrender. The Court emphasized that the Passport Authority retains its statutory discretion under the Passport Act and Rules to assess eligibility, and the applicant must satisfy all documentary and procedural requirements. The Court further noted that the applicant’s compliance with bail conditions over six years demonstrated his reliability.
The Court rejected the argument that the mere pendency of appeal triggers an absolute bar under GSR 1993, holding instead that judicial orders granting bail with travel restrictions supersede general administrative guidelines.
The Verdict
The applicant succeeded. The Court permitted him to apply to the Regional Passport Office for a passport within two weeks of the order. Upon issuance, the applicant must deposit the passport with the Investigating Officer within two days, and it shall be retained by the officer during the pendency of the appeal. If the Investigating Officer has changed, the passport shall be deposited with a responsible officer at Kotwali Police Station. The Passport Authority shall decide the application in accordance with the Passport Act and Rules, subject to the above condition.
What This Means For Similar Cases
Judicial Bail Conditions Override Administrative Bar
- Practitioners may now argue that GSR 570(E) does not automatically bar passport applications by accused persons on bail pending appeal if the bail order contains specific travel restrictions.
- The judicial condition (e.g., "no travel without court permission") is sufficient to satisfy the state’s interest in preventing flight risk, rendering the GSR bar redundant in such cases.
- Courts may now issue directions to Passport Authorities to process applications, provided surrender conditions are imposed.
Passport Surrender Is a Viable Alternative to Denial
- The judgment establishes that surrender of passport upon issuance is a legally acceptable alternative to outright denial under Section 6(2)(f).
- This creates a new procedural pathway for accused persons needing passports for medical, humanitarian, or family emergencies during pendency of appeal.
- Legal teams should now routinely seek such directions in bail applications or interim applications, especially where the accused has no prior history of non-compliance.
Passport Authority Retains Discretion, But Must Act Fairly
- The Passport Authority retains the right to verify eligibility under the Passport Act and Rules.
- However, it cannot refuse an application solely on the ground of pending appeal if the court has imposed a surrender condition.
- Refusal must now be based on substantive grounds under the Act (e.g., false information, national security), not merely the pendency of appeal.
