Madras High Court
Chithra @ Amutha Venkadesh vs State Represented By on 12 January, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.RC.Nos.1413 and 1414 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.08.2021
PRONOUNCED ON : 12.01.2022
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Revision Case Nos.1413 and 1414 of 2019
CHITHRA @ AMUTHA VENKADESH
... Petitioner in Crl.R.C.No.1413 of 2019
K.PRASANNA VENKADESH ... Petitioner in Crl.RC.No.1414 of 2019
Vs.
State represented by
The Inspector of Police
Central Crime Branch
Coimbatore
Crime No.2 of 2018 ... Respondent in both Crl.RCs.
COMMON PRAYER: The Criminal Revision case is filed under under Section
397 read with 401 of the Code of Criminal Procedure, 1973 praying to set aside the
orders dated 21.06.2019 made in C.M.P.No.3158 of 2019 and Crl.M.P.No.3157 of
2019 on the file of the learned Judicial Magistrate No.III, Coimbatore, and to allow
the above Criminal Revisions.
1/14
https://www.mhc.tn.gov.in/judis
Crl.RC.Nos.1413 and 1414 of 2019
IN BOTH CRL.RCs.
For Petitioners : Mr.S.N.Arun Kumar for
M/s.M.Vinoth
For Respondent : Mr.S.Sugendran
Government Advocate (Crl. Side)
COMMON ORDER
The Criminal Revision cases have been filed against the orders dated 21.06.2019 made in C.M.P.No.3158 of 2019 and Crl.M.P.No.3157 of 2019 on the file of the learned Judicial Magistrate No.III, Coimbatore.
2. The respondent police registered the case in Crime No.2 of 2018 against the petitioners on 10.01.2018 for the offences under Sections 120B, 419, 420 of IPC and 66D of Information Technology Act, 2000 and subsequently, seized the passports of the petitioners while arresting them and produced the same before the learned Judicial Magistrate-III, Coimbatore. During the pendency of the investigation, the petitioners approached the learned Magistrate invoking the provisions under Section 451 read with 457 of Cr.P.C. for return of passports in C.M.P.No.3158 of 2019 and Crl.M.P.No.3157 of 2019 and the learned Magistrate 2/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 after enquiry, dismissed the petitions and refused to return the passports. Challenging the said orders of dismissal, the petitioners have filed the present revisions before this Court.
3. The learned Counsel for the petitioners would submit that the petitioners are in need of the passports for their day to day activities other and administrative work. He would further submit that the petitioners had filed applications before the Court below in C.M.P.No.3158 of 2019 and Crl.M.P.No.3157 of 2019 under Sections 451 read with 457 of Cr.P.C. seeking for return of passports and the learned Magistrate dismissed the same without considering the legal provisions that neither the Police Officer nor the Court has power to impound the passport. The power of impounding the passport is only vested with the passport authority and that Section 10 of the Indian Passport Act, 1967 contains the provisions as to who is the authority to impound the passport and how it can be held and that the learned Magistrate failed to consider the same and dismissed the applications which warrants interference of this Court. The learned Counsel further placed reliance on the order of this Court dated 01.02.2019 in Crl.RC.No.111 of 2019 wherein, the learned Counsel for the petitioner therein has referred the order of this Court in 3/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 Crl.RC.No.1201 of 2018 dated 29.11.2018 in which, this Court, after taking note of the decisions of the Hon'ble Supreme Court reported in Suresh Nanda Vs. CBI (Appeal (Crl.) No.179/08 dated 24.01.2008 that the passport can be retained only by an order of passport authority under Section 10(3) of the Passport Act and even the Court cannot impound the passport though Section 104 Cr.P.C. vests the power on the Police Officer, it shall not prevail over the Passport Act, had allowed the petition. Therefore, the order of the learned Magistrate is liable to be set aside and the learned Magistrate has to be directed to return the passports of the petitioners.
4. The learned Government Advocate (Crl. Side) would submit that the petitioners are involved in a criminal case and while searching their house, the respondent police seized some documents and that the passports are one among them and during the pendency of the investigation, the petitioners filed applications before the Court below invoking Sections 451 read with 457 Cr.P.C. for return of passports and the same were dismissed by the learned Magistrate. He would submit that during pendency of the investigation, the return of documents to the party, is the discretionary power of the Magistrate. Further, the case has been registered against the petitioners for the offences under Sections 120B, 419, 420 of IPC and 66D of 4/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 Information Technology Act, 2000 and there is a possibility of the petitioners to escape to abroad by using the passports and it would be difficult to secure them if they abscond to abroad and the investigation would be protracted without any progress. Hence, considering the above said facts, the learned Magistrate rightly dismissed the applications and there is no reasons to interfere with the orders of the learned Magistrate.
5. Heard the learned Counsel for the petitioners and the learned Government Advocate (Crl. Side) appearing for the respondent police and perused the materials on record.
6. Admittedly, the case has been registered against the petitioners in Crime No.2 of 2018 for the offences under Sections 120B, 419, 420 of IPC and 66D of Information Technology Act, 2000 and while arresting the petitioners, the respondent police seized some of the documents and the passports are one among those documents. Thereafter, during the pendency of the investigation, the petitioners approached the learned Magistrate invoking the provisions under Section 451 read with 457 of Cr.P.C. for return of passports in C.M.P.No.3158 of 2019 and 5/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 Crl.M.P.No.3157 of 2019 and the learned Magistrate after enquiry dismissed the petitions by order dated 21.06.2019. As contended by the learned Counsel for the petitioners, this Court in Crl.RC.No.111 of 2019 by referring the earlier decision of the Hon'ble Supreme Court reported in Suresh Nanda Vs. CBI (Appeal (Crl.) No.179 / 08 dated 24.01.2008) set aside the order of the Magistrate and directed the learned Magistrate to return the passport. This Case is also identical to the above case. Therefore, the relevant paragraphs of the order of this Court in Crl.RC.No.111 of 2019 dated 01.02.2019 is extracted as follows;
3. Learned counsel appearing for the petitioner, at the outset, submitted that the rejection by the Judicial Magistrate is against the law laid down by the Hon'ble Supreme court and also the legal principles laid down by this Court stating that the Court cannot impound the passport as it was entirely within the domain of the Passport Issuing Authority to impound same under the Passports Act. Learned counsel drew the attention of this Court to the judgment of the Hon'ble Supreme Court rendered on this aspect in the case of Suresh Nanda – Vs – CBI (Appeal (Crl.) No.179/08 dated 24.1.2008). Learned counsel drew specific reference to paras 14 & 15 of the judgment, which is extracted hereunder for better clarity :-
“14. In the present case, neither the passport authority 6/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport authority under Section 10 (3).
15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. 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 a passport is provided for in Section 10 (3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P.Singh's Principles of Statutory Interpretation (9 th Edition.
Pg. 133). This principle is expressed in the maxim Generalia Specialbus non derogant. Hence, the impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.”
4. Learned counsel for the petitioner also drew the attention of this 7/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 Court to a recent order passed by this Court in the case of Malaisamy–Vs – The State (Crl. R.C. No.1201/18 – Dated 29.11.2018). This Court, after taking note of the judgment of the Supreme Court in Suresh Nanda's case (supra) has allowed a revision petition on similar grounds. The findings of this Court, which is evident from paras 3 to 6 and the final conclusion, as is evident from para-7 of the said order are extracted hereunder for reference:-
“3. The learned counsel would also draw the attention of this Court to a recent order passed by the learned Judge of this Court on 12.05.2017 in Crl.O.P.No.5521 of 2017. The learned Judge, following the above order of the Hon'ble Supreme Court, has held that the Passport Act overrides the provision of Cr.P.C. for the purpose of impounding the passport. The operative portion of the order of the learned judge as found in para nos. 7 to 9 are extracted hereunder:
“7. The objections raised by the learned Special Public Prosecutor for CBI Cases may not be of much relevance since what would be pertinent to decide in the present petition is the powers of police to retain the passport of the petitioner. The Passport Act which is a special law will prevail over the provisions of the Cr.P.C., the General law. 8. Section 10(3)(e) of the Passport Act specifically deals with impounding of passport whereas Section 104 Cr.P.C., allows the Court to impound the 8/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 document to produce before the Court. The Passport Act overrides the provision of Cr.P.C., for the purpose of impounding passport. In the present case in hand, the order directing to surrender the passport indefinitely amounts to impounding of the passport itself.
9. In view of the foregoing findings, the order dated
05.11.2016 passed in Crl.M.P.No.16123 of 2016 dated 05.11.2016, insofar as the condition to surrender the petitioner's passport before the Court is illegal. Accordingly, the condition to surrender the petitioner's passport is set aside. It is also made clear that all other conditions imposed in the impugned order dated 05.11.2016 passed in Crl.M.P.No.16123 of 2016 dated 05.11.2016, by the Sessions Court, shall remain unaltered. The Criminal Original Petition is allowed to the extent mentioned above.?
He would therefore submit that the jurisdictional Court cannot retain the passport under Section 104 of Cr.P.C. He would further submit that even otherwise, the petitioner herein was arrayed as A13 and his culpability in the crime is questionable and therefore, his passport cannot be impounded for an indefinite period till the disposal of trial.” 9/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019
4. The learned Government Advocate (Crl.Side) appearing for the state would object saying that there is no particular provision in the Passport Act, which excludes the application of Section 104 of Cr.P.C. He would therefore submit that impounding of passport under the said Section cannot be found fault with and in any case the learned Magistrate felt that it was not in the interest of investigation to return the passport at this stage and therefore, he would submit that no relief need be granted to the petitioner.
5. This Court is unable to appreciate the argument advanced on behalf of the respondent police. When the Hon-ble Supreme Court has clearly held that the provisions of Passport Act will prevail over the provisions of Cr.P.C., and even the learned Judge of this Court in his order, as cited supra, has held that the provisions of Passport Act will override the provisions of Cr.P.C. The law declared by the Hon''ble Supreme Court, as per Article 141 of the Constitution of India, is binding on all the Courts in India.
6. The contention on behalf of the respondent police that there is no express provision in the Passport Act for excluding the application of Section 104 of Cr.P.C is a far~fetched argument, which cannot be countenanced in the face of the law laid down by the Hon'ble Supreme Court. When such enactment like Passport Act provides for a particular action to be taken in 10/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 impounding passport, such action could be taken only under the Passport Act and not by general enactment like Cr.P.C. Even otherwise, this Court is of the view, on the basis of the materials placed for consideration that there was no overt act of accusation against the petitioner herein and in such circumstances, retaining the passport for a considerable length of time, during pendency of trial before the trial Court does not advance the cause of administration of justice, since impounding passport would result in affecting fundamental rights of the petitioner for his free movement.
7. For the above said reasons, this Court finds that the order impugned in the revision is unsustainable in law and therefore, the same is set aside and the criminal revision is allowed. The learned Judicial Magistrate No.III, Coimbatore, is directed to return the passport to the petitioner within a period of two weeks from the date of receipt of a copy of this order.
In view of the above, learned counsel for the petitioner submits that the above issue is no longer res integra and, therefore, the petitioner is entitled to the relief of return of his passport.
7. Considering the above said legal provisions and facts and circumstances of the case and since, neither the Police Officials nor the Court has authority to impound the passport, the orders in C.M.P.No.3158 of 2019 and Crl.M.P.No.3157 11/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 of 2019 dated 21.06.2019 passed by the learned Judicial Magistrate No.III, Coimbatore, are hereby set aside. The learned Magistrate is directed to return the passport to the petitioners.
8. However, since the petitioners are involved in a criminal case for serious offences under Sections 120B, 419, 420 of IPC and 66D of Information Technology Act, 2000, if the petitioners are allowed to go abroad, further proceedings in the case would be protracted. Therefore, the petitioners are restricted to go abroad by using the said passports. In case of any emergency, the petitioners shall approach the Magistrate and obtain necessary permission for leaving the country and it is made clear that without obtaining permission from the learned Magistrate, the petitioners shall not leave the country. If the petitioners violate the above condition, the learned Magistrate shall take necessary steps to impound the passports of the petitioners in accordance with law through the Passport Authority.
9. With the above directions, the Criminal Revisions Cases are allowed.
12.01.2022 ksa-2 12/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 To
1. The Judicial Magistrate No.III, Coimbatore
2. The Inspector of Police Central Crime Branch, Coimbatore
3. The Public Prosecutor High Court, Madras 13/14 https://www.mhc.tn.gov.in/judis Crl.RC.Nos.1413 and 1414 of 2019 P.VELMURUGAN, J.
Ksa-2 Pre-Delivery Order in Criminal Revision Case Nos.1413 and 1414 of 2019 12.01.2022 14/14 https://www.mhc.tn.gov.in/judis