There is no provision anywhere that says an accused person cannot leave India. The restrictions all come from somewhere else, and the reason people get stopped at Kempegowda International Airport is almost always that they cleared one lock and not the other two.
| Lock | Source | What opens it |
|---|---|---|
| Bail condition | Section 482(2)(iii) BNSS for pre-arrest bail, Section 480(3) for regular bail | An application for permission to travel before the court that granted bail or is trying the case |
| Passport | Sections 6(2)(f) and 10(3)(e) of the Passports Act, 1967 | An order of the court permitting departure, produced to the passport authority |
| Look out circular | Ministry of Home Affairs office memoranda, not a statute | Withdrawal or modification by the originating agency, or an order of the High Court |
The bail condition
Section 482(2) allows a court granting pre-arrest bail to impose conditions in the light of the facts, and clause (iii) names one of them expressly: a condition that the person shall not leave India without the previous permission of the court. Section 480(3) separately makes three conditions mandatory on regular bail in the graver categories, being attendance in accordance with the bond, not committing a similar offence, and not making any inducement, threat or promise to a person acquainted with the facts, and allows the court to impose such other conditions as it considers necessary in the interests of justice. Deposit of the passport is a common addition.
Read your own bail order before you book anything. If the order says nothing about travel and no passport was deposited, the position is different from one where a condition exists, though even then a court that is trying the case can direct attendance. Where a condition does exist, travelling without permission is not a technicality. It is the readiest ground for cancellation of bail, and Section 483(3) allows the High Court or the Court of Session to direct that a person released on bail be arrested and committed to custody.
What the application has to carry
Applications refused are usually applications that gave the court nothing to hold on to. The court is being asked to take a risk, and the papers should reduce that risk visibly.
- Exact dates of departure and return, and the itinerary, rather than a request for open ended permission
- The purpose, supported by a document, meaning the employer's letter, the conference invitation, the university admission, the medical appointment or the visa application
- An undertaking to return by a stated date, to attend every hearing on return, and to submit to the jurisdiction of the court
- Solvent surety, and where the court asks for it, cash security or a fixed deposit, with the willingness stated in the application rather than negotiated at the hearing
- Your record of attendance in the case so far, which is the single most persuasive item if it is good
- Proof of roots in Bengaluru, meaning property, family, employment and a dependent school going child
- Where the passport has been deposited in court, a specific prayer for its release for the stated period and for its redeposit on return
Which court to approach
The application goes to the court in seisin of the matter. Before a chargesheet, and where the condition was imposed in a pre-arrest order, that is normally the court that granted bail. After cognizance, it is the trial court, and if the trial court refuses, the Sessions Court or the High Court can be moved. Filing in the wrong court wastes the window, because these applications are heard on notice to the Public Prosecutor and that alone takes time.
The look out circular
This is the one that catches people by surprise, because there is no statute behind it and nobody is served with a copy. A look out circular is an executive instrument, opened at the request of an investigating agency under Ministry of Home Affairs office memoranda, and enforced by the immigration authorities. You find out when you are stopped.
If you have any reason to think one exists, meaning the offence is economic, a bank or a central agency is involved, or somebody has said as much, do not test it at the counter. The routes are a written request to the originating agency to withdraw or suspend it, an application before the court in seisin recording that the court has permitted the travel, and a writ petition before the High Court under Article 226 where the circular is being maintained without justification. Courts have repeatedly said that such a circular cannot be used as a routine coercive measure and must fit the grounds in the memoranda under which it was opened.
What I tell clients who travel for work
Ask for the permission structurally rather than trip by trip if the case is going to run for years. Where the pattern of travel is regular and the attendance record is clean, courts do sometimes grant permission for a defined period with a reporting condition, which is far more workable than an application every quarter. Second, never let anyone tell you that a small case does not need permission. The size of the offence has nothing to do with it, because the condition is in the bail order and the breach is of the order. Third, if a condition is genuinely unworkable for your profession, the answer is an application to modify it, made early and with material, not silent non-compliance. Our note on the conditions a court can impose when granting anticipatory bail sets out what is standard and what is excessive, and the separate problem of getting a passport issued or renewed while a case is pending is dealt with in our answer on a passport application stuck because of a pending case.