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2019 Supreme(Cal) 934
IN THE HIGH COURT OF CALCUTTA
Madhumati Mitra, J.
Sukumar Rajgopalan – Appellant
Versus
State of West Bengal and Another – Respondents
Criminal Revision No. 392 of 2019
Decided On : 10-07-2019
Advocate Appeared:
Moyukh Mukherjee, Adv., Koustav Lal Mukherjee, Adv., Abhijit Singh, Adv., Abhishek Sinha, Adv., Sabir Ahmed, Adv., Baisali Basu, Adv.
The court emphasized that the magistrate did not have the power to impound the passport and that it could only be done by the passport authority under Section 10(3) of the Passport Act.
Headnote:
Passport - Criminal Procedure - Indian Penal Code - Passport Act - Section 498A/420/494 of the Indian Penal Code - Section 10(3) of the Passport Act
Fact of the Case:
The petitioner challenged the order rejecting the return of his passport, which was seized during the investigation of a criminal case under Sections 498A/420/494 of the Indian Penal Code.
Finding of the Court:
The court found that the magistrate did not have the power to impound the passport and that it could only be done by the passport authority under Section 10(3) of the Passport Act. The court set aside the impugned order and directed the Investigating Officer to hand over the passport to the petitioner within 15 days, allowing the magistrate to impose suitable conditions to ensure the petitioner's attendance during trial.
Issues: The main issue was the refusal of the return of the petitioner's passport by the magistrate, based on the contention that it could pave the escape route for the accused and he would not face trial.
Ratio Decidendi: The court held that the magistrate did not have the power to impound the passport and that it could only be done by the passport authority under Section 10(3) of the Passport Act. The court also emphasized that the magistrate could impose suitable conditions to ensure the petitioner's attendance during trial.
Final Decision: The impugned order was set aside, and the Investigating Officer was directed to hand over the passport to the petitioner within 15 days, with the magistrate being allowed to impose suitable conditions to ensure the petitioner's attendance during trial.
JUDGMENT :
Madhumati Mitra, J.
Petitioner has challenged the impugned order dated 19.12.2018, passed by the Learned Additional Chief Judicial Magistrate, Bidhannagar North-24 Parganas, in connection with G.R.Case No.415/2017 arising out of Lake Town Police Station, Case No.75/2017 dated 23.05.2017 under Sections 498A/420/494 of the Indian Penal Code.
2. By the impugned order the Learned Magistrate has rejected the prayer for return of passport of the petitioner.
3. Facts which are necessary for disposal of this application are as follows:-
4. Opposite party no.2 lodged an FIR with Lake Town Police Station being no.75/2017, dated 23.05.2017 under Sections 498A/420/494 of the Indian Penal Code. Petitioner was released on bail vide order dated 13.06.2017 on certain terms and conditions. Thereafter, the Investigation ended in submission of charge-sheet against the petitioner and his brother.
5. Petitioner has stated that he has to travel to foreign countries on regular basis since 2002 in connection with his service. It has been contended on behalf of the petitioner that due to non-return of the passport petitioner cannot travel outside India.
6. From order dated 13.06.2017, it appears that the petitioner was enlarged on bail by the Learned Additional Chief Judicial Magistrate, Bidhannagar. At the time of granting bail, the petitioner was directed to submit his passport to the investigating officer.
7. Thereafter, on 25.07.2017 charge-sheet was submitted by the Investigating Officer after completion of investigation. That means, the petitioner was enlarged on bail during investigation. Another co-accused was granted bail by the High Court in CRM No.5386 of 2017 upon furnishing bond of Rs.5,000/- with two sureties of like amount among whom one must be local surety as reflected in order dated 17.12.2018 passed in G.R.Case No.415/2017.
8. On 10.08.2017, petitioner approached before the Learned Magistrate for getting back his passport on the ground that investigation had been completed. Learned Magistrate turned down the said prayer of the petitioner citing the decision of one of the co-ordinate benches of this Court in Sirichai Sasanarakhit Vs. the State of West Bengal (C.R.R. No.2315 of 2014). At the time of rejecting the prayer of the petitioner to return his passport the Learned Magistrate accepted the contention of the Learned Assistant Public Prosecutor that the return of passport to the accused would pave the escape route for the accused and he would not face trial.
9. Petitioner again on 19.12.2018 prayed for return of his passport and said prayer was also rejected by the Learned Magistrate. Learned Advocate appearing for the petitioner has strongly argued in favour of return of passport of the petitioner on the ground that the Learned Magistrate has no power to impound the passport. He has contended that the Magistrate committed an error by refusing to return the passport of the petitioner which cannot be done in view of Sub-Section (3)(e) of Section 10 of the Passport Act. In support of his contention he has placed reliance on a decision of our Apex Court in Suresh Nanda Vs. C.B.I., (2008) AIR SC 1414.
10. Learned Advocate appearing for the State has also contended that the power of police to seize passport does not extend to impounding of passport. According to his contention in the instant case, the passport of the petitioner is in custody of the Investigating Officer for a considerable period which amounts to impound of the passport.
11. In paragraph 12 of the judgment as cited by the Learned Counsel for the petitioner our Apex Court drew a difference in between seizure of a document and impounding of a document. Paragraph 12 of the judgment reported in AIR 2008 SC 1414 is cited hereunder:-
"12. It may be mentioned that there is a difference between seizing of a document and impounding a document. 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 po
