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2019 Supreme(All) 2777
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Rajeev Singh, J.
Jyotinder Singh Randhawa - Appellants
Vs.
State of U.P. - Respondent
U/S 482/378/407 No. 5778 of 2019
Decided On : 24-10-2019
For the Appellant : Arun Sinha, Siddhartha Sinha and Umang Agarwal
For the Respondents: G.A.
Point of law : Act is the complete code read with the Passport Rules, 1980 which contains the procedure for issuance and revocation of passport, Section 10 of the Act clearly provides the procedure for impounding the passport, in case, any criminal proceeding is initiated against the holder, therefore, it is appropriate that the opposite party may approach to the Passport Authority for impounding of the passport of the applicant
Headnote:
Criminal Procedure Code - Section 482 - Wildlife Act, 1972 - Sections 9/27/29/31/32/39/44/48A/49B/50/51(IC)/52/38V - Forest Act, 1927 - Section 26 - Passports Act - Section 10- Quashing order – Claim of compensation - Learned counsel for the applicant submitted that applicant is a renowned and acclaimed Golfer who has represented India across Globe and has been awarded Award by Humble President of India and is having no criminal antecedents. He further submitted that applicant was falsely implicated in aforesaid case by the Forest Officials and nothing, as claimed by the Forest Officials, has been recovered from the applicant or from his car. The "Jungle Fowl" which is alleged to have been hunted by applicant and allegedly recovered from the vehicle of applicant does not come in any of the Schedule of Animal and their Species as provided under Wild Life (Act, 1972 –
Finding of the court :In our opinion even court cannot impound a passport - Though no doubt, Section 104 states that the court may, if it thinks fit, impound any document or thing produced before it in our opinion this provision will only enable the court to impound any document or thing other than a passport - This is because impounding of a passport is provided for in Section 10(3) of Passports Act - Passports Act is a special law while is a general law - It is well settled that the special law prevails over general law vide G.P. Singh's Principles of Statutory Interpretation - This principle is expressed in maxim non derogate - Hence, impounding of a passport cannot be done by court under Section 104 though it can impound any other document or thing - For the aforesaid reasons, we set aside impugned order of the High Court and direct respondent to hand over the passport to the appellant within a week from today - However, it shall be open to the respondent to approach Passport Authorities under Section 10 or the authorities under Section 10-A of Act for impounding passport of appellant in accordance with law - As it is evident from record and also from impugned order that no any written request was made by Forest Official for retaining passport before court below and only the Prosecuting Officer has made his anticipation that in case passport of applicant is released he may flee away This submission must be based on instruction of Authority –
Result :Appeal allowed
ORDER :
Rajeev Singh, J.
1. Heard Mr. Arun Sinha, learned counsel for the applicant, Mr. Aniruddh Kumar Singh, learned A.G.A. for the State and perused the record.
2. The present application has been filed under Section 482 Cr.P.C. for quashing the order dated 06.07.2019 for retaining the passport of the applicant, passed by learned Chief Judicial Magistrate, Bahraich in Case No. 3740 of 2018, under Sections 9/27/29/31/32/39/44/48A/49B/50/51(IC)/52/38V of the Wildlife (Protection) Act, 1972 and Section 26 of the Forest Act, 1927, Range-Motipur, Katarniyaghat, District Bahraich and to release the passport.
3. Learned counsel for the applicant submitted that the applicant is a renowned and acclaimed Golfer who has represented India across the Globe and has been awarded Arjuna Award by Hon'ble the President of India and is having no criminal antecedents. He further submitted that the applicant was falsely implicated in the aforesaid case by the Forest Officials and nothing, as claimed by the Forest Officials, has been recovered from the applicant or from his car. The "Jungle Fowl" which is alleged to have been hunted by the applicant and allegedly recovered from the vehicle of applicant does not come in any of the Schedule of Animal and their Species as provided under Wild Life (Protection) Act, 1972.
4. Learned counsel for the applicant further submitted that the penalty in the Wild Life (Protection) Act, 1972 has been provided under Section 51, under which the accused may be punished with the imprisonment which shall not be less than three years or with fine which may extend to Rs. 25,000/- but may extend to seven years with fine which shall not be less than Rs. 10,000/-. He further submitted that the applicant was enlarged on bail by this Court in the aforesaid case vide order dated 21.02.2019 in Bail Application No. 1402 of 2019 with the directions that the "accused-applicant" will co-operate in the investigation of the case and will also deposit his passport till submission of report under Section 173 Cr.P.C., it was further directed that the decision with regard to the retention of the passport will be taken by the trial court after the report so submitted under Section 173 Cr.P.C.
5. Learned counsel for the applicant further submitted that the applicant was detained by the Forest Officials on 26.12.2018 and the Case was registered against him bearing No. 68 of 2018-19, Range- Motipur, District Bahraich and the seizure report was sent by the Forest Officials to the Chief Judicial Magistrate, Bahraich. Thereafter, the complaint dated 22.02.2019 was filed in the court of Chief Judicial Magistrate, Bahraich under Section 55 of the Wild Life (Protection) Act, 1972 and on the same date the cognizance was taken by the court below on the aforesaid complaint without considering the fact that the complaint was filed under Section 55 of Wild Life (Protection) Act it is observed that the charge sheet was filed and the cognizance was taken on the charge sheet and he further submitted that in the case of complaint he had to follow the procedure.
6. Learned counsel for the applicant further submitted that on 21.02.2019 the applicant was enlarged on bail by this Court in Bail Application No. 1402 of 2019 and on the next date, i.e., on 22.02.2019, the Complaint Case was filed and after letting off from jail, the applicant moved an application before the Chief Judicial Magistrate, Bahraich on 05.03.2019 and prayed for release of his passport, but the application of the applicant was rejected vide impugned order with the observation that the Prosecuting Officer has reported that in case, the passport is returned to the applicant, he may leave the country.
7. Learned counsel for the applicant further submitted that the court below has committed error in considering the report of the Prosecuting Officer and making observations since the case is to be listed for framing of the charge, therefore, the presence of accused-applicant is necessary in court a
