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Andhra High Court · body

2007 DIGILAW 571 (AP)

KAKULAKUNTFA RAVI KUMAR v. STATE OF A. P.

2007-06-20

K.C.BHANU

body2007
( 1 ) THIS Criminal Petition is filed by the petitioner A-1 under Section 482 Cr. P. C. to quash the order dated 12-03-2007 in D. D. R. No. 2527 of 2007 in Cr. No. 197 of 2007 of iii town Police Station, Visakhapatnam. ( 2 ) POLICE registered a case against the petitioner in Cr. No. 197 of 2007 for the offence punishable under Sections 498-A IPC and 3 and 4 of Dowry Prohibition Act, 1961. During the course of investigation, the Station House officer filed a memo before the I Additional chief Metropolitan Magistrate, Visakhapatnam to address a letter to the passport officer to revoke the passport of the petitioner under sections 10, 10-A, e and h of the Passports act, 1967. Basing on the said memo, the impugned order was passed directing the off ice to addressa letter to the Passport office, hyderabad to revoke the passport of the petitioner under Sections 10,10-A, e and h of the passports Act, 1967 and accordingly, the memo was allowed. Challenging the same, the present petition is filed. ( 3 ) LEARNED counsel for the petitioner contended that police have not filed the charge sheet and therefore, the learned Magistrate has no jurisdiction to direct the passport office to revoke the passport of the petitioner, that he has not given any reason for directing the passport officer, that there is no allegation that the petitioner evading arrest, that the offence under Section 498-A IPC cannot be treated as an extrication offence, thattill date no summons were served on him to appear before the Court or police and therefore, he prays to set aside the same. ( 4 ) ON the other hand, learned Public prosecutor opposed the same on the ground that the petitioner involved in the offence and police are taking aid and assistance of the court for securing the presenceof the petitioner/ accused, that it is not a case of Magistrate interfering with the investigation being conducted by the police and therefore, he prays to dismiss the petition. ( 5 ) LEARNED counsel for the petitioner relied on a decision reported in Hassan AH Khan v. The Regional Passport Officer, Passport office, Hyderabad, wherein it was held as follows: "it is settled law that the respondent herein could not have taken steps for impounding the passport without issuing notice to the petitioner and affording him an opportunity to submit his explanation. Opportunity of hearing is required to be given to a passport holder before the decision to impound the passport is taken. The passport holder is entitled for a reasonable opportunity of being heard. " ( 6 ) HE also relied on another decision reported in Dr. Sudhakar Babu v. Duvvuru (Murala)Nageswaramma and another, wherein it was held as follows: "as held in Hassan Ali Khan case (1 supra) a passport holder is entitled to a reasonable opportunity of being heard before an order impounding his passport is passed. Had the petitioner been given a show cause notice as to why his passport should not be impounded, he would have had an opportunity to say what he has to. If the Magistrate is not satisfied with the reasons given by the petitioner, his passport can be impounded. The learned Magistrate was in error in impounding the passport of the petitioner, without giving any opportunity of being heard to the petitioner. " ( 7 ) IN both the cases the passport of the petitionertherein was impounded without there being any opportunity to the holder of the passport. That stage has not come in the cse on hand. ( 8 ) HE also relied on unreported decision of this Court in Crl. P. No. 1535 of 2006, dated 06-07-2006 between Mohd. Asadullah. Sharief and Ayesha wherein it was held that the trial court cannot exercise the inherent powers except as provided undercriminal Procedure code. ( 9 ) HE also relied on another decision reported in M. L Sethi v. R. P. Kapur and another, wherein it was held as follows: "there is, however, nothing in these sections to indicate that the Magistrate is required to intervene in the investigation until the investigation is completed and the investigating officer arrives at some conclusion in accordance with Section 169 or 170 Cr. P. C. " ( 10 ) THERE is no dispute about the proposition of law laid down by the Apex Court. P. C. " ( 10 ) THERE is no dispute about the proposition of law laid down by the Apex Court. From the above decision, it is clear that the Magistrate cannot intervene in the investigation until the investigation iscompleted, until some occasion arises forthe Magistrate make a judicial order in connection with an investigation of a cognizable offence by the Police. ( 11 ) ADMITTEDLY, it is not a case of intervention by the Court, but the order was passed on a memo filed by the police to address a letter to the passport office, Hyderabad. Sub-Section (3) (e) of Section 10 of the Passports act, 1967 (forshort the 'act') reads as follows: "section 10 (3): The passport authority may impoundorcause to be impounded or revoke a passport ortravel document- (b ). . . . . . . . . . . . . (c ). . . . . . . . . . . . (d ). . . . . . . . . . . . . (e) If 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. " ( 12 ) THEABOVE provision makes it clear that the passport authority can impound the document on any of the following conditions as mentioned in sub-section 3 (e) of Section 10 of the Act. Therefore, appropriate decision has to be taken by the passport authority. The impugned order would go to show that the office was directed to address a letter to the passport authority for taking action. Police can seek direction from the competent Court during the course of investigation. ( 13 ) SECTION 157 Cr. P. C. is designed to keep the Magistrate informed of the investigation of cognizable offences so as to be able to control investigation, and if necessary to give appropriate direction under Section 159 Cr. P. C. It is only incidental power of the Magistrate to give certain directions to the police. During the course of investigation when the Magistrate has power to take cognizance on the report submitted under Section 173 Cr. P. C. , it is deemed that he can given direction to the police to enable them to complete the investigation. P. C. It is only incidental power of the Magistrate to give certain directions to the police. During the course of investigation when the Magistrate has power to take cognizance on the report submitted under Section 173 Cr. P. C. , it is deemed that he can given direction to the police to enable them to complete the investigation. Therefore, the contention of the learned counsel for the petitioner that the magistrate has become functus officio till the report undersection 173 Cr. P. C. is filedcannot be accepted. The prayer sought for by the prosecution is to pass on the information to the competent authority. Of course, the prosecution can as well pass on the information to the competent authority for taking appropriate decision as required under section 10 (3) (e) of the Act. So also, there is no bar for the police to request the Court to inform the competent authority to take appropriate decision. Anybody can give information to the competent authority for the purpose of impounding the document under section 10 (3) (e) of the Act. In view of the fact that case is pending before the learned magistrate, there is no bar for intimating the said fact to the passport authority for taking appropriate decision at request made by the prosecution. It is only information given to the competent authority for taking appropriate decision. Of course, it is for the competent authority to take decision in accordance with law. Therefore, there is no abuse of process of court and the order under challenge does not suffer from any infirmities so as to call for interference by this court. ( 14 ) ACCORDINGLY, the Criminal Petition is dismissed. .