Delhi District Court
Central Bureau Of Investigation (Cbi) vs Shri K. C. Palanisamy on 2 March, 2015
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Revision No. 18/14
ID No. 02406R0161942014
Central Bureau of Investigation (CBI) . . . . Revisionist
Through Shri Naveen Kumar,
Senior Public Prosecutor.
versus
Shri K. C. Palanisamy . . . . . Respondent
Through Shri Prashant Mendiratta,
advocate.
__________________________________________________________
Date of Institution : 07.07.2014
Date when arguments were heard : 19.02.2015
Date of Judgment : 02.03.2015
JUDGMENT :
The present Criminal Revision filed under Section 397 of The Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") is directed against the order dated 17.04.2014 passed by learned CMM, SouthEast, Saket Courts, New Delhi in the matter of CBI Vs. K. C. Palanisamy & Ors., bearing RC No.BDI2012/E/0006.
2. In compliance of order of Hon'ble Apex Court dated 01.03.2012, on the basis of complaint dated 12.07.2006, made by CR No. 18/14 1 of 11 complainant K. Gopalkrishnan, FIR under Section 120B read with Section 420, 467, 468 and 471 of The Indian Penal Code (in short "IPC") was registered against accused Shri K. C. Palanisamy, Shri Siddharth Rai, Shri R. Karunanidhi and the Manager / Vice President of ABN Amro Bank.
3. Matter was investigated as per law. On completion of investigation, chargesheet was filed in the court of learned CMM, New Delhi. It is stated that in the course of investigation, search was conducted at the residential premises of respondent K. C. Palanisamy and during search, apart from other documents / articles, Indian Passport Number F7265862 in the name of respondent accused Kangayam Chenniyappa Palanisamy (K. C. Palanisamy) issued on 19.04.2006 RPO Chennai was seized under intimation to the court concerned.
4. The CBI vide letter dated 26.12.2012, forwarded the passport of respondent to the Regional Passport Officer, Regional Passport Office, Chennai, Tamil Nadu for impounding under Section 10 of The Passport Act 1967.
5. Respondent moved an application dated 18.05.2013 before the court of competent jurisdiction for release of his passport. Petitioner CBI filed reply to the application of respondent. The said application of respondent was dismissed as withdrawn on 18.05.2013. Subsequently, CR No. 18/14 2 of 11 respondent moved another application on 28.03.2014 before learned CMM, SouthEast, Saket Courts, New Delhi for release of his passport no. F7265862. CBI opposed the application of respondent.
6. On hearing arguments of both the parties, learned CMM disposed of the application of respondent vide order dated 17.04.2014 with direction to petitioner to obtain the possession of the passport from the Regional Passport Office, Chennai. Thereafter, CBI was directed to return the passport to respondent. CBI was given liberty to approach the appropriate authority under Section 10 or 10A of The Passport Act for impounding of the passport of respondent.
7. The petitioner, feeling aggrieved by the impugned order dated 17.04.2014 of learned CMM, has approached this court for setting aside the order.
8. Respondent made appearance before this court through his counsel Shri Prashant Mendiratta, advocate. No formal reply to the Revision Petition of petitioner has been filed on behalf of respondent.
9. I have heard arguments advanced by Shri Naveen Kumar, learned Senior Public Prosecutor for petitioner and Shri Prashant Mendiratta, learned counsel for respondent at length.
10. Learned Senior Public Prosecutor submitted that the impugned order passed by learned CMM is not only erroneous and ex facie bad in law but also based on incorrect appreciation of law laid CR No. 18/14 3 of 11 down by Hon'ble Apex Court in the case titled as Suresh Nanda Vs. CBI, SLP (Crl.) 3408 of 2007 decided on 24.01.2008. He further argued that the impugned order of learned CMM tantamounts to interfering with the quasijudicial powers of the adjudicating authority under The Passport Act 1967.
11. Per contra, learned counsel for respondent submitted that the order passed by learned CMM is based on sound reasoning and the principles of law as laid down by Hon'ble Apex Court in Suresh Nanda's case (supra) and does not warrant interference by this court. He further submitted that on the date of writing letter dated 26.12.2012 by CBI to the RPO Chennai, no criminal proceeding was pending against respondent before the court of competent jurisdiction and therefore, CBI was not justified in sending the passport of the respondent to RPO for impounding. Learned counsel after drawing the attention of the court to the letter dated 26.12.2012 written by Superintendent of Police, CBI to the Regional Passport Officer, Chennai, Tamil Nadu and the provisions of Section 10 of The Passport Act, 1967 submitted that there is no illegality or impropriety in the order passed by learned CMM.
12. I have considered the rival submissions of both the parties and perused the record of the case.
13. In order to appreciate the submissions of both the parties in CR No. 18/14 4 of 11 the right perspective, it is necessary to refer the relevant para of the judgment dated 24.01.2008 passed by Hon'ble Apex Court in Suresh Nanda's case (supra). Para no. 13 of the judgment reads as under : "Hence, while the police may have power to seize a passport under Section 102 of Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 of Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269]."
CR No. 18/14 5 of 11
14. Section 10 of The Passport Act gives power to the passport authority to vary, impound and revoke the passport and travel documents of a person. Relevant portion of Section 10 of The Passport Act is reproduced herein below : "Section 10(3) Passport Act 1967: The passport authority may impound or caused to be impounded or revoke a passport or travel document
(a) xxx xxx xxx
(b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf xxx xxx xxx;
(c) if the passport authority deems it necessary to do so in the interest of sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interest of the general public;
(d) xxx xxx xxx
(e) if the proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India."
15. The passport number F7265862, in the name of respondent issued on 19.04.2006, RPO, Chennai was seized by CBI, during search conducted at the premises of respondent. In view of judgment dated 24.01.2008 of Hon'ble Apex Court, in Suresh Nanda's CR No. 18/14 6 of 11 case (supra), the CBI did / does not have authority to retain or impound the passport seized under Section 102 of Cr.P.C. beyond certain period. It was duty bound to send the passport to the passport authority along with the letter clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10 (3) of The Passport Act. Following the judgment of Suresh Nanda's case (supra), the passport of respondent was forwarded to the Regional Passport Officer, RP Office, Chennai, Tamil Nadu for impounding under Section 10 of The Passport Act.
16. Respondent has contended that on the date of writing letter dated 26.12.2012 by CBI to the Regional Passport Officer, Chennai, no criminal proceedings were pending against respondent before the court of competent jurisdiction. In the case titled as Anand Tiwari Vs. Union of India & Others W.P. (C) 3885/2013 decided by Hon'ble High Court of Delhi along with other petitions on 18.09.2013, it was observed in para no. 12 of the judgment that "Clause (e) of Section 10 (3) applies only if the proceedings in respect of an offence alleged to have been committed by the passport holder are pending before a criminal court at the time, when the passport is revoked / impounded. It was further observed that mere registration of a criminal case against a person does not amount to proceedings being pending against him before a criminal court. The CR No. 18/14 7 of 11 proceedings can be said to be pending only when a charge sheet is filed".
17. In the instant case, though on the date of writing letter by CBI to the Regional Passport Officer, no criminal proceedings were pending in the court, yet chargesheet against the respondent and other accused persons have already been filed by CBI before court of competent jurisdiction on 08.07.2013. Cognizance of offence has also been taken by the learned trial court. In view of observations made by Hon'ble High Court in Anand Tiwari's case (supra), it is crystal clear that the proceedings in respect of an offence alleged to be committed by the passport holder should be pending before a criminal court at the time when the passport is revoked / impounded. Admittedly, in the present case, the passport of respondent has neither been revoked nor impounded till date. Proceedings for impounding the passport of respondent is pending before the competent authority i.e. the Regional Passport Officer. Meanwhile, chargesheet has already been filed by the CBI in the court. Now, the decision is to be taken by the passport authority whether to impound / revoke the passport of respondent or not and CBI has no role to play in the matter.
18. In the course of proceedings in the matter before the trial court, CBI approached the RPO, Chennai, for knowing the status of action taken on the letter dated 26.12.2012. The CBI has been informed by the competent authority that show cause notice has already been CR No. 18/14 8 of 11 issued to respondent at all his available addresses for seeking his explanation. CBI has further been informed that respondent got issued five passports, the particulars of which are mentioned in para no. 3 of the grounds of appeal of the petitioner. Final decision for revocation / impounding of the passport of respondent is to be taken by the passport authority.
19. The judgment of Hon'ble High Court of Delhi passed in Anand Tiwari's case (supra) is not applicable in the facts and circumstances of the present case as in Anand Tiwari's case, his passport was already impounded and the reasons for impounding the passport was not furnished to Mr. Tiwari. In that case, Hon'ble High Court has directed the Regional Passport Officer to pass a speaking order in terms of subsection 5 of Section 10 of The Passport Act and also supply the copy of the said order to the passport holders if demanded by them.
20. For the foregoing reasons, this court is of the considered view that the learned CMM did not properly appreciate the law laid down by Hon'ble Apex Court in Suresh Nanda's case (supra) in the right perspective. Once the passport along with the letter has already been sent by petitioner CBI to the Regional Passport Officer for impounding, there is no logic in directing the petitioner / CBI to obtain the possession of the passport of respondent from the said office, return CR No. 18/14 9 of 11 it to the respondent and thereafter, again approach the appropriate authority under Section 10 or 10A of The Passport Act for impounding of the passport of respondent. The petitioner was having no authority to retain the passport of the respondent beyond the period of four weeks from the date of its seizure. It has rightly sent the passport of respondent to the concerned authority along with the letter stating the reasons for impounding the same. The competent authority, after following due process of law, will take appropriate decision after considering the merits of the case, whether to impound / revoke the passport of respondent or not. CBI has no role to play in this regard.
21. This court does not find merit in the contentions raised by learned counsel for respondent that as on the date of writing the letter by CBI to the concerned passport authority for impounding the passport of respondent, no criminal proceedings were pending against him. In Anand Tiwari's case (supra), it has categorically been held that on the date of revocation / impounding of the passport of a person, the criminal proceedings must be pending in the court. Chargesheet is already filed in the case and therefore, it cannot be said that no criminal case is pending in the court against the respondent.
22. In view of aforesaid reasons, this court is of the considered view that the impugned order dated 17.04.2014 needs to be set aside. Accordingly, the order passed by learned CMM dated 17.04.2014 is CR No. 18/14 10 of 11 hereby set aside.
23. A true copy of the judgment along with TCR be sent back to court concerned. Revision file be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e 2nd March, 2015 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
CR No. 18/14 11 of 11