Can an Accused on Anticipatory Bail Obtain a Passport to Travel Abroad?

Consider a person named in an FIR who has been granted anticipatory bail. The chargesheet has not been filed, and the person now wishes to travel abroad to perform Haj or Umrah. The passport office, pointing to the pending case, refuses to issue or renew a passport. The impasse is common, and so is the misconception behind it: that a pending criminal case is an absolute bar to holding a passport. Indian law says otherwise. The right to travel abroad is a fundamental right, the statutory bar carries a built-in exemption, and criminal courts routinely grant the permission that unlocks it, subject to conditions designed to secure the accused's return and cooperation.

The Right to Travel Abroad Is a Fundamental Right

The starting point is constitutional, not statutory. In Satwant Singh Sawhney v D. Ramarathnam (1967), the Supreme Court held that the right to travel abroad is part of "personal liberty" under Article 21, of which no person can be deprived except according to procedure established by law. The Court grounded the holding in a practical observation: "the want of a passport in effect prevents a person leaving India", so the State, by refusing one, "completely prevents him from travelling abroad".

Maneka Gandhi v Union of India (1978) reaffirmed the principle with greater force:

"...the right to travel and to go outside the country ... must be included in rights to 'personal liberty' on the strength of decisions of this Court giving a very wide ambit to the right to personal liberty."

The Court added that no person can be deprived of the right to go abroad unless a law prescribes the procedure for the deprivation and the deprivation is effected strictly in accordance with that procedure. Any such procedure must be "fair, just and reasonable, not fanciful, oppressive or arbitrary". Two consequences follow. First, the existence of criminal proceedings does not extinguish the right to travel; it only exposes the right to lawful, proportionate restriction. Second, every restriction must survive the Maneka Gandhi standard of fairness.

The Statutory Bar and the 1993 Exemption That Unlocks It

Section 6(2)(f) of the Passports Act, 1967 requires the passport authority to refuse a passport where:

"proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India"

Read alone, this looks like a dead end. It is not. A Government notification issued under Section 22(a) of the Act, G.S.R. 570(E) dated 25 August 1993, exempts persons facing pending criminal proceedings from the operation of Section 6(2)(f), on the condition that they produce an order of the criminal court permitting them to depart from India. As the Delhi High Court explained in Kaushalya Devi v The State of NCT of Delhi (6 May 2025), the notification stipulates that where a person is facing a criminal proceeding, the passport can be issued or renewed only upon a court order permitting the person to leave the country. Where the court's order does not specify a duration, the notification prescribes a default validity of one year for the passport so issued or renewed. Recent decisions, including Kaushalya Devi itself, have occasionally questioned whether the notification appropriately implements the statutory intent, but it remains the operative framework for accused persons seeking passports.

The impoundment power is similarly bounded. Under Section 10(3)(e), the passport authority may impound or revoke a passport where criminal proceedings are pending. The power is discretionary, must be exercised reasonably, and cannot be used to deny a fundamental right in perpetuity. In Suresh Nanda v CBI (Delhi High Court, 21 September 2011, in proceedings that followed a remand from the Supreme Court), the court held that "the travel of the Petitioner cannot be withheld indefinitely", as that would violate his fundamental right, and that "the investigating agency had no power to impound the passport". Impoundment is the passport authority's statutory function; the police cannot achieve it by other means.

What Courts Weigh Before Granting Permission

The permission decision is a balancing exercise. In Kulwant Singh @ Kalwant Singh v State of Punjab (Punjab and Haryana High Court, 21 January 2025), the court put it this way:

"The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation rights of the police and the interest of the society ... The court has to consider antecedents of the person accused or suspected of commission of the offence, nature of the offence he is said to have committed, necessity for his presence for investigation, duration of investigation and such other relevant factors."

Drawing the case law together, five factors dominate:

1. Stage of the case: whether the chargesheet has been filed or the investigation is still ongoing.
2. Nature and seriousness of the offence: the gravity of the allegation is relevant, though not decisive by itself.
3. Likelihood of absconding: the accused's roots in India, family ties, property and record of compliance with court orders.
4. Purpose of travel: legitimate purposes such as employment, medical treatment, family exigency and religious duty weigh in favour of permission.
5. Necessity of presence: whether the investigation genuinely requires the accused's physical availability during the proposed travel, and for how long.

The pre-chargesheet stage matters. Where the chargesheet has not been filed, the investigation is by definition preliminary: formal charges have not been determined, trial is not underway, and no witnesses are about to depose. Courts have treated this stage as materially favourable to travel permission, since the accused's continuous physical presence is rarely critical at that point. The Passports Act itself draws no distinction between the pre-chargesheet and post-chargesheet stages, but in practice the stage of proceedings is one of the most significant considerations.

Anticipatory Bail Is Not a Travel Ban

Anticipatory bail, now governed by Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 438 of the Code of Criminal Procedure, 1973), protects a person from arrest. Its grant embodies a judicial assessment that detention is not necessary. That assessment sits awkwardly with any blanket denial of travel: if custody is unnecessary, an absolute prohibition on movement demands separate justification.

Bail conditions restricting movement are permissible, but they cannot be mechanical. Kulwant Singh is emphatic on the point:

"It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution."

The same judgment holds that a condition requiring surrender of the passport indefinitely amounts to impoundment of the passport, which only the passport authority can order under Section 10(3) of the Passports Act; the criminal court cannot achieve the same result through an open-ended bail condition.

The Supreme Court has repeatedly permitted accused persons on bail to travel abroad for legitimate purposes. In Parvez Noordin Lokhandwalla v State of Maharashtra, (2020) 10 SCC 77, the Court surveyed its own practice: travel allowed for medical treatment (Ganpati Ramnath v State of Bihar, 2017), for a family exigency (K. Mohammed v State of Kerala, 2020), and for employment (Tarun Trikha v State of W.B., 2015). In Pitam Pradhan v State of A.P. (2014), the Court granted anticipatory bail while simultaneously permitting foreign travel, noting that the applicant's job required it at frequent intervals. High Courts continue to apply this line of authority; the Himachal Pradesh High Court extracted the survey in Abhishek Rana v State of H.P. (16 June 2025).

Pilgrimage Engages a Second Fundamental Right

Where the purpose of travel is Haj or Umrah, Article 25 enters the analysis. Subject to public order, morality and health, it guarantees to all persons "freedom of conscience and the right freely to profess, practise and propagate religion", a guarantee the courts have read as protecting not merely belief but the practice and performance of religious duties.

The Jammu and Kashmir High Court applied precisely this combination in Sajad Ahmad Khan v Union of India (31 May 2025):

"The petitioner intends to travel to holy pilgrimage Haj/Umrah, as such, requires the passport to fulfill his religious obligations. The right to travel of the petitioner cannot be curtailed in this manner."

The court reiterated that the right to travel abroad is inherent in Article 21 and can be curtailed only on statutory grounds after due satisfaction. Notably, the petitioner's statement that he did not intend to visit any foreign country other than the holy cities of Mecca and Medina was viewed favourably. A pilgrimage application therefore rests on two fundamental rights at once: the Article 21 right to travel and the Article 25 right to religious practice. An accused willing to confine the travel to the pilgrimage itself strengthens the case further.

How the Permission Route Works

The mechanism under the 1993 notification runs as follows:

1. The accused applies to the criminal court seized of the case (typically the trial court) for an order permitting departure from India, or recording no objection to passport issuance or renewal, for a specified purpose.
2. The court weighs the factors set out above and, if satisfied, passes an order to the effect that it has no objection to the accused applying for issuance or renewal of a passport, or that it permits the accused to depart from India for the specified purpose.
3. The accused presents the order to the passport authority, which processes the application notwithstanding Section 6(2)(f).
4. Unless the court specifies otherwise, the passport is issued or renewed for one year.

Courts typically attach conditions calibrated to secure return and cooperation, such as:

• prior permission of the court before each spell of foreign travel;
• a personal bond with sureties;
• advance disclosure of travel details, including flights, dates, lodging and contact information;
• return by a specified date, with reporting to the investigating officer or police station before departure and on return;
• an undertaking not to influence witnesses or interfere with the investigation, and to remain available for investigation and trial.

A Note on Name Discrepancies in the FIR

Applications of this kind occasionally raise a further wrinkle: the accused's name in the FIR differs from the name in official identity documents. No leading judgment squarely addressing the effect of such discrepancies on passport issuance was located in the underlying research, so the position rests on general principle. A passport is issued on the basis of the applicant's official identity documents, not on how the applicant happens to be named in a criminal complaint; a variation is not, by itself, a ground of refusal under the Passports Act. The prudent course is to address the discrepancy upfront in the court application: annex the Aadhaar card, PAN, voter ID or birth certificate showing the correct legal name, place the FIR extract alongside, and explain how the variation arose. Far from weakening the application, the clarification demonstrates transparency about identity and supports the prayer.

Practical Takeaways

• A pending criminal case is a ground for refusing a passport under Section 6(2)(f) of the Passports Act, but G.S.R. 570(E) of 25 August 1993 exempts an applicant who produces a court order permitting departure.
• Lead with the constitutional position: the right to travel abroad under Article 21 (Satwant Singh Sawhney; Maneka Gandhi) survives the registration of an FIR.
• The grant of anticipatory bail helps rather than hinders: it reflects a judicial finding that detention is unnecessary, which makes a blanket travel ban hard to justify.
• Emphasise a pre-chargesheet stage where applicable; the investigation is preliminary and the accused's presence is less critical.
• Frame religious pilgrimage as a doubly protected purpose under Articles 21 and 25, and offer to confine the travel to that purpose.
• Offer conditions: bond and sureties, itinerary disclosure, a fixed return date, reporting requirements and continued cooperation with the investigation.
• Resist indefinite passport surrender: only the passport authority may impound a passport under Section 10(3), and a criminal court cannot replicate impoundment through an open-ended bail condition.
• The principles are consistent across jurisdictions, but High Court practice varies in emphasis; verify local practice in the relevant court.

Key Authorities

1. Satwant Singh Sawhney v D. Ramarathnam, Assistant Passport Officer, AIR 1967 SC 1836; [1967] 3 SCR 525 — the right to travel abroad is part of personal liberty under Article 21. Source
2. Maneka Gandhi v Union of India, (1978) 1 SCC 248 — deprivation of the right to go abroad requires a fair, just and reasonable procedure established by law. Source
3. Suresh Nanda v CBI, Delhi High Court, 21 September 2011 — travel cannot be withheld indefinitely; investigating agencies have no power to impound passports. Source
4. Parvez Noordin Lokhandwalla v State of Maharashtra, (2020) 10 SCC 77 — the Supreme Court's survey of orders permitting accused persons on bail to travel abroad for medical, family and employment purposes, as extracted in Abhishek Rana v State of H.P., Himachal Pradesh High Court, 16 June 2025. Source
5. Kulwant Singh @ Kalwant Singh v State of Punjab, Punjab and Haryana High Court, 21 January 2025 — balancing framework; mechanical or indefinite passport-surrender conditions are impermissible. Source
6. Kaushalya Devi v The State of NCT of Delhi, Delhi High Court, 6 May 2025 — the G.S.R. 570(E) mechanism; court permission enables passport issuance or renewal despite a pending case, with one-year default validity. Source
7. Sajad Ahmad Khan v Union of India, Jammu and Kashmir High Court, 31 May 2025 — Haj/Umrah pilgrimage engages Articles 21 and 25; a passport cannot be withheld so as to frustrate it. Source
8. Passports Act, 1967, Sections 6(2)(f), 10(3)(e) and 22(a), with G.S.R. 570(E) dated 25 August 1993 — the statutory scheme of refusal, impoundment and exemption. Source

This analysis reflects the law as at May 2026. It is published for general information and does not constitute legal advice.