JUDGMENT Aniruddha Bose 1. IN this petition, the writ petitioner challenges an order impounding his passport in terms of the provisions of section 10(3) of the Passport Act, 1967. The decision to impound the passport was taken on the charge of suppression of a pending criminal case in his application for re-issue or renewal of his passport. 2. THE petitioner was arrested on or about 10 June 2003 for his alleged complicity in an offence disclosed in a First Information Report (FIR) filed by the Secretary, Kolkata Stock Exchange Association Ltd., which was registered as P.S./DD Case No.476 dated 24 September, 2002 under section 20(B)/420/409/ 467/468/471/477A of the India Penal Code. THE FIR was filed in connection with allegations of artificial rising of share prices which resulted in serious payment, as a consequence of which a large number of retail investors were alleged to have had lost their money invested in the stock market. THE petitioner claims however, that he was not named as an accused in the FIR. At that point of time he was the President of the Calcutta Stock Exchange. He was granted bail on 14 July, 2003 by the learned Chief Metropolitan Magistrate, Kolkata. It appears that condition imposed for grant of bail, inter alia provided that the petitioner should not leave Kolkata Metropolitan city without permission of the Court. THE petitioner was further required to surrender his passport to the Investigating Officer, and to report to the Investigating Officer once a week for three months. The petitioner accordingly claims to have had deposited the passport which was issued on 7 February, 2001 with the Investigating Officer of the Hare Street Police Station. There were subsequent variations in the other conditions of bail as per directions of the Hon'ble High Court, but these are not of much relevance for adjudication of the present proceeding, and I do not consider it necessary to narrate these variations in detail in this judgment. 3. THE petitioner claims to have complied with the conditions while on bail and on certain occasions he was permitted to go outside the city by orders passed by the Court of competent jurisdiction from time to time. 3. THE petitioner claims to have complied with the conditions while on bail and on certain occasions he was permitted to go outside the city by orders passed by the Court of competent jurisdiction from time to time. By an order dated 9 March, 2005 passed by an Hon'ble Division Bench of this Court in an application filed under section 439(2) of the Code of Criminal Procedure, (the "Code" in short), the petitioner was permitted to leave India for a specified period, again subject to fulfilment of certain conditions. For that period, Investigating Officer was directed to hand over the passport to the petitioner. It was also specified in the order of the Hon'ble Division Bench that on his return, the petitioner should hand over the passport to the Investigating Officer. 4. ON receiving the passport from the Investigating Officer on 28 March, 2005, the petitioner claims to have become aware of the fact that the validity of his passport had lapsed on 10 August, 2004. Thereafter he made an application for revalidation of his passport. This application was made in a standard format in a printed form which appears to be a statutory form. This form requires several disclosures to be made by the applicant, which are itemised serially in the form of questions. Against serial No. 20 in this form, certain disclosures are required to be made on complicity or involvement of the applicant in criminal proceedings. Questions itemised as serial no. 20(b) and 20(c) are relevant for the present proceeding, and these are: "20. a)......... b) Are any criminal proceedings pending against you before a Court in India? If so, give name of Court, case number and offence? c) Has any Court issued a warrant or summons for appearance or warrant for arrest or an order prohibiting your departure from India? If so, give name of Court, case number and offence." The reply of the petitioner in the application form against both these queries was "No". It appears that the petitioner had got the passport renewed and thereafter travelled to the United Kingdom on 12 April, 2005. His case is that he returned from the United Kingdom on 21 April, 2005, and on 22 April, 2005 he had deposited the passport with the Investigating Officer complying with the direction of the Court. It appears that the petitioner had got the passport renewed and thereafter travelled to the United Kingdom on 12 April, 2005. His case is that he returned from the United Kingdom on 21 April, 2005, and on 22 April, 2005 he had deposited the passport with the Investigating Officer complying with the direction of the Court. A chargesheet was filed by the sub-inspector, Hare Street Police Station, before the learned Chief Metropolitan Magistrate on 8 June, 2006 under section 120B/420/409/467/468/471/477A of the Indian Penal Code in connection with Hare Street, P.S./DD Case No. 476 and the petitioner was arraigned as accused No. 20 therein. The learned Magistrate took cognizance of the offences alleged in the chargesheet on the same date. Thereafter, it appears that the petitioner was again permitted to travel abroad for six months on certain conditions imposed by the Court, and on his return to the city he had deposited the passport with the Investigating Officer. 5. THE petitioner had approached this Court by filing a revisional application for quashing the said chargesheet but the revisional application was dismissed by this Court on 19 June, 2007. In the meantime, on or about 18 September, 2006, the Sub-Inspector, Special Investigating Cell (GS)DD, filed an application before the learned Metropolitan Magistrate, Kolkata for issuance of summons upon the Regional Passport Officer, Kolkata for production of application of the petitioner for renewal of the passport together with all the documents filed in connection with such renewal. This application was allowed in substance by the learned Metropolitan Magistrate. Another application was filed before the learned Metropolitan Magistrate, Kolkata by the investigating agency in which prayer was made for initiation of legal action against the petitioner. In this application, which was made in the month of December, 2006, it was alleged, that the petitioner had got his passport renewed by suppressing the fact that criminal investigation was pending against him in Hare Street P.S/DD Case No. 476 dated 24 September, 2002. 6. AS it appears from the affidavit filed on behalf of the Investigating Authority, affirmed by one Swapan Kumar Dasgupta on 27 February, 2008, the Investigating Authority became aware of such suppression when they verified the passport details after the same was returned to them on 22 April, 2006. The Deputy Commissioner of Police, Detective Department (respondent No. 4) sent a communication to the Regional Passport Officer (respondent No. 2). The Deputy Commissioner of Police, Detective Department (respondent No. 4) sent a communication to the Regional Passport Officer (respondent No. 2). On 22 December, 2006 requesting him to take steps against the petitioner under the Passport Act, 1967 for false disclosure against column 20(b) of the said form. Thereafter, on 28 July, 2007, another letter was sent by the respondent No. 4 to the respondent No. 2 giving in details the allegations against the petitioner, with a request to take necessary legal action against the petitioner. A show-cause notice was issued in the meantime against the petitioner, dated 20 July, 2007 by the Superintendent (Admn.), Regional Passport Office, Kolkata. The petitioner claims to have received such notice on 25 July, 2007. This notice stipulated: "Kamal Kumar Narottam Dash Parekh 2/10 Sarat Boss Road Garden Apt. Bolck-H Kolkata 700020 Sub: Show-cause notice You may recall that on the basis of your application for re-issue passport on 31.5.05 a passport bearing No. F1834379 dt. 04.4.05 was issued in your favour. It has been brought to the notice of this office that you are involved in Hare Street PS/DD Case No.476 dt. 24.9.02. It is prima facie observed that you have obtained the said passport by suppressing your pending criminal case. You are hereby asked to show-cause as to why your passport should not be impounded under section 10(3)(b) and (e) of the Passport Act, 1967. Your reply in this matter should reach this office within 15 days from the date of issue of this letter, failing which your passport is likely to be impounded. (S.R.DAS) Superintendent (Admn.)" 7. ON receiving this notice, the petitioner requested the passport authorities to hand over to him the photocopies along with other documents filed by him for giving reply to the show-cause notice. In this reply the petitioner also specifically took the defence that since no chargesheet had been filed in the said police case at the time the petitioner had made the application for renewal, it could not be said that any criminal proceeding was pending against the petitioner. The petitioner also sought for a photocopy of the application made by him as also the information received by the investigating authority. Thereafter a detailed reply was given on behalf of the petitioner by his learned Advocate by a communication dated 17 August, 2007. The petitioner also sought for a photocopy of the application made by him as also the information received by the investigating authority. Thereafter a detailed reply was given on behalf of the petitioner by his learned Advocate by a communication dated 17 August, 2007. In both these communications, allegations made against the petitioner were denied, and it was contended that the passport of the petitioner ought not to be impounded. ON 21 August, 2007, another letter was sent by the learned Advocate for the petitioner to the passport authorities repeating the request for supply of copies of the application made by the petitioner and the communication of the Investigating Officer. 8. THEREAFTER on 22 August, 2007 the petitioner claims to have received a copy of a communication dated 6 August, 2007, addressed to different authorities, who mainly are in charge of various departure points from India. The authorities specified in that communication were also requested to maintain a warning card on the petitioner and not to extend any passport facilities to him. A copy of this communication was marked for the petitioner. This communication stipulates: "It has been decided to impound the above mentioned passport: It is, therefore, requested that the passport in question found or presented to you for any service may please be impounded and forwarded to this office for disposal. You are requested to maintain a warning card on Kamal Kumar Narottam Das Parekh and should not extend passport facilities on any kind to him without taking our prior clearance." Brief particulars on the petitioner was thereafter indicated in this communication. The petitioner through his learned Advocates sent another communication in terms of section 10(5) of the Passport Act, to the Superintendent (Administration) Regional Passport Office on 22 August, 2007 demanding a copy of the reasons recorded in the order by which the passport was impounded. In response to this letter, the learned Advocates for the petitioner received a response dated 30 August, 2007 from the said authority. It was recorded in this response: "Advocate Meharia and Company 9, Old Post Office Street Kolkata 700001 Sub: Impounding passport of Kamal Kr. Narottam Das Parekh. This has reference to your letter vide No.KP32/0080/1354 dt.22.08.07 on the subject cited above. I am enclosing herewith copy of passport application made by your client, Sri Parekh, on 31.03.2005 and copy of memo No. 1752 (Encio)/DD/Spl. Narottam Das Parekh. This has reference to your letter vide No.KP32/0080/1354 dt.22.08.07 on the subject cited above. I am enclosing herewith copy of passport application made by your client, Sri Parekh, on 31.03.2005 and copy of memo No. 1752 (Encio)/DD/Spl. Cell (GS) dt.28.07.2007 received from Deputy Commissioner of Police, Detective Department, on the basis of which passport bearing No.F1834379 dt.04.04.05 has been impounded, in terms of provision contained in section 10 sub-section (5) of the Passport Act, 1967. (S.R.DAS) (Superintendent (Admn.)" 9. OF the two documents enclosed to this communication, the memorandum originating from the office of the Deputy Commissioner of Police, Detective Department contained the allegations against the petitioner which appears to have prompted the passport authorities to impound his passport. The substance of this memorandum was that the petitioner had got his passport renewed fraudulently by suppressing the fact of pendency of the Hare Street P.S./DD(Kolkata) Case No. 476 dated 24 September, 2002 in column 20(b) of the passport application form. This communication also gives some details of the allegations against the writ petitioner so far as the main charge against him is concerned. The allegations contained in this memorandum is against the petitioner as also against one Dinesh Kumar Singhania. But reproduction of particulars on the allegations in this judgment is not necessary because in this writ petition, the only issue which is being examined is the validity of the order impounding the passport. 10. THE writ petitioner assails in this writ petition the notice to show cause as also the order of impounding of passport mainly on three counts. It is first submitted on his behalf that on the day the application for renewal was made, no chargesheet had been issued and thus cognizance had not been taken by the Metropolitan Magistrate as regards the alleged offences. In view of this, no criminal case could be said to have beer pending against the petitioner in any Court at that point of time. THE impugned action of the passport authority impounding his passport has also been questioned on the ground of violation of the principles of natural justice. THE case of the petitioner is that he had received the notice to show-cause on 25 July, 2007. THE impugned action of the passport authority impounding his passport has also been questioned on the ground of violation of the principles of natural justice. THE case of the petitioner is that he had received the notice to show-cause on 25 July, 2007. THE notice provided that he was to furnish reply within a period of 15 days, and the stipulated period ought to have been computed from the date on which he received the notice. In such a situation, the order of impounding the passport ought not to have been passed before 9 August, 2007, but the order impounding the passport was issued on 6 August, 2007. This irregularity, according to the petitioner, reflects an element of prejudgment on the part of the passport authority and also results in denial of adequate opportunity of hearing to him. It has also been argued on behalf of the petitioner that the petitioner ought to have been given opportunity of actual hearing before the order impounding his passport was passed and failure to afford such opportunity of hearing has also resulted in violation of principles of natural justice. According to the petitioner, mere opportunity to file reply without giving opportunity of actual representation through a process of hearing does not fulfill the requirement of compliance of the principles of natural justice. THE third ground of challenge is that the order has been passed at the dictate of an external authority, without any independent application of mind on the part of the impounding authority. THE case of the petitioner is that the concerned authority has not disclosed sufficient reasons to justify of act of impounding the passport and on the other hand has acted mechanically on the basis of a memorandum issued by the investigating authority without application of mind. The passport authorities as well as the police authorities have contested the writ petition by filing affidavit. The affidavit filed on behalf of the passport authorities by one Satya Ranjan Das affirmed on 16 January, 2008 defends the impugned action. As regards the allegation that he was not given opportunity of hearing, it has been stated in paragraph 10 of this affidavit: "With regard to the statements made in Paragraphs-31, 32, 33, 34, 35 and 36 of the said writ application, I say that considering the reply of Mr. As regards the allegation that he was not given opportunity of hearing, it has been stated in paragraph 10 of this affidavit: "With regard to the statements made in Paragraphs-31, 32, 33, 34, 35 and 36 of the said writ application, I say that considering the reply of Mr. Parekh the competent authority took decision to impound passport as he was involved in criminal case and suppressed the fact. I also say that the Holder was duly-interviewed and heard by the Regional Passport officer and express his inability to restore passport facility. I further say that he was advised to go for appear to the Chief Passport Officer, New Delhi as per provision. But without filing any appear, he filed this writ application before exhausted the alternative remedy, " (quoted verbatim) 11. ON behalf of the police authorities, objection has been taken as regards maintainability of the writ petition on the ground that there is provision for appeal against an order impounding passport of an individual under the Passport Act, 1967 itself, the Appellate Authority being the Chief Passport Officer, Ministry of External Affairs, New Delhi. It has also been contended that the petitioner made misdeclaration in column 20 [c] of the form also. The case of the police authorities is that since admittedly, there was restriction on petitioner's travel imposed by a Court of competent jurisdiction and the petitioner had been arrested in connection with the Hare Street PS/DD Case No. 476, the petitioner's passport ought to have been impounded for this reason as well. ON behalf of the police authorities it has also been submitted that the Passport Act 1967 does not contemplate any provision for giving any prior opportunity of hearing before the impounding is done in terms of section 10(3), (c), (d) or (e) of the Act. It is also the case of the respondents that in any event, since at present proceeding against the petitioner is pending before a Criminal Court in India in respect of offences alleged to have been committed in India, the petitioner's passport could be impounded for this reason also. In this regard, my attention has been drawn to the provisions of section 10(3)(e) of the Passport Act. In this sub-section, it has been provided: "10(3). In this regard, my attention has been drawn to the provisions of section 10(3)(e) of the Passport Act. In this sub-section, it has been provided: "10(3). The passport authority may impound or cause to be impounded or revoke a passport of travel document,- (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. IN this matter the petitioner was originally represented by Mr. S. Pal, learned Senior Advocate. Subsequently, arguments were advanced on behalf of the petitioners by Mr. M. L. Sharma Several authorities were relied upon by Mr. Pal, and subsequently by Mr. Sharma in support of their submissions and I shall briefly discuss the ratio of these authorities. The first question which I propose to examine is as to whether the writ petition ought to be rejected on the ground of existence of alternative remedy. The statute provides for appeal against an order passed under sub-section (3) of section 10 of the Passport Act, under which the petitioner's passport was impounded. The submission of the petitioner on this point is that in the event an order is passed in violation of the principles of natural justice, then the aggrieved person can approach the Writ Court straightaway, without availing of the provision for appeal. This proposition of law has been laid down in the case of Whirlpool Corporation vs. Register of Trade Marks reported in 1998(8) SCC 1 . IN the case of Maneka Gandhi vs. Union of INdia reported in AIR 1978 SC 597 , it has been held: "62. Now, here, the power conferred on the passport authority is to impound a passport and the consequence of impounding a passport would be to impair the Constitutional right of the holder of the passport to go abroad during the time that the passport is impounded. Moreover, a passport can be impounded by the passport authority only on certain specified grounds set out in sub-section (3) of section 10 and the passport authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. Moreover, a passport can be impounded by the passport authority only on certain specified grounds set out in sub-section (3) of section 10 and the passport authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The passport authority is also required by sub-section (5) of section 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the passport authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. Where the passport authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by section 11, and in the appeal, the validity of the reasons given by the passport authority for impounding the passport can be canvassed before the appellate authority. It is clear on a consideration of these circumstances that the test laid down in the decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the passport authority to impound a passport is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A. K. Kraipak's case ( AIR 1970 SC 150 ). The decision in A. K. Kraipak's case, even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the Constitutional right of the holder of the passport to go abroad and entails adverse civil consequences." Under these circumstances, since this writ petition is founded on the allegations of violations of the principles of natural justice, I decline to dismiss this writ petition only on the ground that in the Passport Act, 1967, there is provision for preferring appeal against the order assailed in the writ petition. Next conies the question as to whether in the present case, where notice to show-cause was given, but no effective opportunity of hearing was afforded to the petitioner before the impounding order was issued, requirement of natural justice could be held to have been complied with. Next conies the question as to whether in the present case, where notice to show-cause was given, but no effective opportunity of hearing was afforded to the petitioner before the impounding order was issued, requirement of natural justice could be held to have been complied with. The stand of the authorities on this point is that the order impugned was passed in compliance of law and the statute does not contemplate opportunity of hearing being given. I do not think there is any scope for the Writ Court for entertaining argument that no opportunity of hearing need be given because the statute does not contemplate such hearing in view the ratio of the decision in the case of Maneka Gandhi. In the same case, it was held by the Hon'ble Supreme Court: "It would not, therefore, be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated if prior notice or hearing was to be given to the person concerned before impounding his passport. The passport authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing remedial in aim, should be given top him so that he may present his case and controvert that of the passport authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the passport authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passport Act, 1967. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passport Act, 1967. If such a provision were held to be incorporated in the Passport Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure 'established' by the Passport Act, 1967 for impounding a passport is in conformity with the requirement of Art. 21 and does not fall foul of that article." 13. NOW in this case, was post-decisional hearing of this nature was given? In the present case, the, authorities obviously did not proceed with an apprehension that power to impound the petitioner's passport would be frustrated if notice is given to him, as the authorities themselves had issued notice to show-cause in this case. Moreover, the passport of the petitioner was directed to be surrendered with the Investigating Authority, by a Court of competent jurisdiction, and the petitioner was allowed access to it under certain specific directions of the Court. There is also indication in the affidavit filed on behalf of the passport authority that the Regional Passport Officer had been heard and interviewed by the Regional Passport Officer and he was advised to meet the Chief Passport Officer. The relevant extract from this affidavit has been reproduced in the earlier part of this judgment. The petitioner, however, has denied that such hearing or advise was given to him in his affidavit-in-reply. The paragraph in question has been verified by the deponent thereof, being the Superintendent (Administration) of the Passport Office as information derived from records. No record was produced to demonstrate that such hearing was given, and no particular has been disclosed as regards the date or time of such hearing. None of the materials disclosed with the pleadings show any notice fixing a date of such hearing, nor there is any record evidencing holding such hearing. No record was produced to demonstrate that such hearing was given, and no particular has been disclosed as regards the date or time of such hearing. None of the materials disclosed with the pleadings show any notice fixing a date of such hearing, nor there is any record evidencing holding such hearing. There is no reflection in the "reasons" disclosed in support of the order impounding the passport that any submission that might have been made in course of such hearing was considered by the authority. In the light of these facts, I accept the submissions made on behalf of the petitioner that he was not afforded adequate opportunity of hearing before the impugned order was passed. 14. ON the aspect of compliance of the requirement of the rule of "audi alteram partem", I have proceeded examining rival contentions in this matter on the basis that such rule requires hearing in person, or by a pleader, and mere opportunity to file a reply and consideration of such reply does not satisfy compliance of such rule. In the case of Maneka Gandhi (supra), the Hon'ble Supreme Court postulated right to be heard. Right of opportunity of hearing is thus implicit on the question of compliance with the principles of natural justice and it cannot be contended that by giving an opportunity to reply itself, without further opportunity of hearing the requirement of principles of natural justice stood complied with. Moreover, in the instant case, the order impounding the passport was passed before completion of the requisite period of 15 days from the date the petitioner received the copy of the notice. ON this count also the impugned action of the respondent authorities is flawed. In this regard, the decision of this Court in the case of Shree Pradeep Kundalia vs. Union of India and Ors., reported in CAL LT 1998(2) HC 415, Hassan Ali Khan vs. Regional Passport Officer, Passport Office, Hyderabad reported in AIR 1998 AP 232 are relevant. The impugned order has also been challenged on the ground that the impounding authority did not apply its mind in passing the order but acted on the dictate of the police authorities. Two authorities have been relied on behalf of the petitioners on this count being a decision of the Hon'ble Supreme Court in the case of State of U.P. and Ors. Two authorities have been relied on behalf of the petitioners on this count being a decision of the Hon'ble Supreme Court in the case of State of U.P. and Ors. vs. Maharaja Dharmander Prasad Singh and Ors., reported in 1989 (2) SCC 505 and Anirudh Sinhji and Karansinhji Jadeja and Anr. vs. State of Gujarat, reported in 1995(5) SCC 302 . Both these decisions are authorities for the proposition that when statue vests with an authority power to take decisions of this nature, such power partakes a quasi-judicial complexion. While taking decision in exercise of such power, the authority, as held in the case of State of UP. and Ors. vs. Maharaja Dharmander Prasad Singh and Ors. (supra):- "must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion. It would then not be the authority's discretion that is exercised, but someone else's.... " [State of U.P. vs. Maharaja Dharmandar Prasad Singh (supra)]. 15. UNDER the Passport Act, 1967, section 10 vests the power to impound a passport with the passport authority. This power is discretionary, as section 10(3) of the Act stipulates that the passport authority "may" impound a passport under certain defined conditions. The law does not mandate that pendency of a criminal case against the holder of a passport would automatically result in impounding of his passport. The passport authority has to decide, upon exercising his discretion, whether pendency of such criminal case should result in impounding of the passport or not. In the instant case, there is no hint of exercise of such discretion or any application of mind on the part of the passport authority in the order impounding the passport, or in the reasons disclosed in support thereof. No reason has been disclosed by the passport authority, in response to the application made asking for disclosure of "reasons". In the reply of the passport authority to such application, the communication issued by the investigating authority has been disclosed only. This is a clear case of non- application of mind, and the order ex facie appears to be influenced solely by an external agency. The course adopted by the passport authority is impermissible. In the reply of the passport authority to such application, the communication issued by the investigating authority has been disclosed only. This is a clear case of non- application of mind, and the order ex facie appears to be influenced solely by an external agency. The course adopted by the passport authority is impermissible. The ratio of the decision of the Hon'ble Supreme Court in Commissioner of Police vs. Gordhandas Bhanji reported in AIR 1952 SC 16 that power of this nature cannot be exercised at the dictate of an external agency is squarely applicable in this case. 16. THE next issue I shall address to is as to whether in reality any suppression was made by the petitioner by his negative endorsement against column 20(b) of the form. It has been submitted on his behalf that arrest in course of investigation of an offence and subsequent grant of bail does not constitute "pendency of criminal case in a Court". THE case of the petitioner is that until the judicial authority takes cognizance of the offence alleged to have been committed, the case could not be said to be pending in the Court. On this point, reliance has been placed by the petitioner on several decisions, being R.R. Chari vs. State of U.P., AIR 1951 SC 207 , Jamuna Singh vs. Bhadai Shah, AIR 1964 SC 1541 , D. Lakshimmaranan vs. V. Naranana, AIR 1976 SC 1672 , A. K. Roy vs. State ofW. B. (being a Full Bench Decision of this Court reported in AIR 1962 Cal 135 ), Parul Bala Sengupta vs. State (61 CWN 361) and Abhijit Sen vs. Supdt. (Admn.) Regional Passport Officer, 2004 (1) CHN 66 ]. The Code does not contain any provision specifying the stage when a criminal case starts. The heading of Chapter XIV of the Code, however, gives some indication on this point, as it stipulates: "Conditions Requisite or initiation of proceedings" Thereafter, the first provision of this chapter, being section 190 Jays down the situations under which a magistrate may take cognizance of an offence. In the case of R. R. Chad (supra), it has been held, referring to section 190 of the Code - "It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Mag. In the case of R. R. Chad (supra), it has been held, referring to section 190 of the Code - "It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Mag. under one of the three contingencies mentioned in the section........" 17. THIS issue was also considered by the Hon'ble Supreme Court in the case of Jamuna Singh (supra), and the Hon'ble Supreme Court held: 'The Code does not contain any definition of the words" institution of a case". It is clear, however, and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein.' 18. RELIANCE was also placed on the following passage of the decision of an Hon'ble Division Bench of this Court in the case of Abhijit Sen vs. Superintendent (Admn.) Regional Passport Officer, Kolkata and Ors. (supra):- "10. Now, it appears from the said order that the proceeding has not been quashed. It has only the taking of the cognizance by the learned Magistrate has since been quashed. In order to appreciate the situation we may refer to the provisions relating to the conduct of a criminal case and its initiation. Admittedly, Cr. PC has laid down two processes for initiation of a proceeding before a Criminal Court. One part is investigation by the police and the other part is the direction by the Court. The investigation part is done by the police authority without any control over them by the Courts. It starts with section 156 entitling a police officer to investigate a cognizable case. It can do so under order of a Magistrate empowered under section 190 Cr. PC to direct investigation under section 156 sub-section (3); but then in such a case the Court does not take cognizance of the offence. After investigation is conducted a police officer is supposed to submit his report in terms of section 173 Cr. PC sub-section (3) thereof empowers him to submit the report on completion of his investigation or he may ask for time for further investigation. Now after this report is presented before this Court whether a proceeding within the meaning of section 10(2)(e) of the Passport Act is initiated is a question to be looked into. 11. PC sub-section (3) thereof empowers him to submit the report on completion of his investigation or he may ask for time for further investigation. Now after this report is presented before this Court whether a proceeding within the meaning of section 10(2)(e) of the Passport Act is initiated is a question to be looked into. 11. In order to decide the said question we may look into section 190 Cr. PC which prescribes the condition required for initiation of proceedings. Thus, proceedings before a Magistrate is initiated when the cognizance is taken by the Magistrate. A cognizance by a Magistrate is taken when a complaint is received by the Magistrate or upon police report of such facts or upon information received from any person other than police officer or upon his own knowledge that such offence has been committed. But when cognizance is taken upon receiving a complaint under clause (a) of sub-section (1) of section 190, the Court does not do anything except directing investigation under section 156(3) by the police officer. Therefore, we cannot accept this direction to the police officer or investigation to be a proceeding taken by the Court. It may be a cognizance of the complaint but not a cognizance of the offence. In as much as this is a stage for investigation as to whether the complaint lodged disclose a case to be proceeded with and for report. Therefore, clause (a) of section 190 Cr. PC does not initiate the proceeding within the meaning of section 10(2)(e) of the Passport Act. But as soon as a police report within section 190(1)(b) is taken cognizance of the proceeding is initiated before a Criminal Court. Since the next steps are the steps for taking evidence on oath and it makes it a judicial proceedings within the meaning of section 2(i) Cr. PC. The proceeding referred to in section 10(2)(e) imposes a restriction on a person on his movement out of India. Article 19(l)(g) may not be affected if a passport is impounded, since the impounding does not prevent the citizen from moving inside India. He ceases to have any right to leave India. But his right of movement to leave India cannot be restricted except by an authority of law. Article 19(l)(g) may not be affected if a passport is impounded, since the impounding does not prevent the citizen from moving inside India. He ceases to have any right to leave India. But his right of movement to leave India cannot be restricted except by an authority of law. A restriction on such right when the citizen wants to leave India in connection with his business definitely infringes his right to carry on business if not wholly but partially. This fundamental right, which is being interfered with must have sanction of law. A sanction of law cannot be lightly construed. Therefore, when construing the implication of section 10(2Xe), it has to be construed in a manner so as not to incorporate or encompass each and every case and thereby interfere with the right of person to move freely outside India in connection with his business." (Emphasis added) The other decisions relied on this point on behalf of the petitioner also lay down the same proposition of law. The authorities are thus uniform on the point that a judicial proceeding commences under the Code of Criminal Procedure in respect of an offence only when a Court of competent jurisdiction takes cognizance of an offence. And the point of time when a case is taken cognizance of has been explained in the case of D. Lakshiminarayana vs. V. Narayana reported in AIR 1976 SC 1672 . In this judgment, it has been held: 14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of section 190 and the caption of Chapter XIV under which sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of section 190(1) (a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.' 19. THE requirement of the applicant for a renewal of a passport is to inform the passport authority as to whether at that point of time a criminal proceeding was pending against him before a Court of Law in India or not. In the instant case, in view of the law pronounced on this subject in the authorities to which I have referred to earlier, and in particular the case of Lakshminarayan (supra) I do not think mere arrest in course of investigation and grant of bail subsequently constitute "pendency of a criminal proceeding". In the query against column 20(b) of the form, the requirement of an applicant is to disclose not merely whether a case is pending against him, but whether a criminal proceeding is pending against him in a Court in India. A proceeding, in my opinion, cannot be said to be pending against a person in a Court unless the Court takes cognizance of the offence. 20. OF course when a person after arrest is produced before a Court and is granted bail, a proceeding is generated in a Court. And in the present case, the petitioner had approached the Court on several occasions mainly for relaxation of the conditions of bail before he answered "No" to the question specified against column 20(b) of the subject form. But these proceedings were at the stage of investigation. And in the present case, the petitioner had approached the Court on several occasions mainly for relaxation of the conditions of bail before he answered "No" to the question specified against column 20(b) of the subject form. But these proceedings were at the stage of investigation. The various stages involved in an investigation has been examined by the Hon'ble Supreme Court in the case of H. N. Rishbud vs. State of Delhi, AIR 1955 SC 196 : "Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the sport, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (bj the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a chargesheet under section 173." The proceedings that reaches the Court in course of investigation cannot be held to be a "proceeding pending in a Court." Such proceedings remain still at the stage of investigation, and gets transformed into a "proceeding pending in a Court" only, and if, cognizance thereof is taken by the Court. Under these circumstances I do not think the writ petitioner made any misdeclaration on the allegation for which notice to show cause was issued against him. In view of the same I do not accept the case of the respondents that the petitioner had made any misdeclaration in the concerned claim. 21. SEVERAL authorities were cited to demonstrate the stage at which cognizance of an offence is taken by a Court, and what constitutes taking cognizance. This issue has been explained by the Hon'ble Supreme Court in the case of Narsingh Das Tapadia vs. Goverdhan Das Partani and Anr., reported in 2000(7) SCC 183 : "8. Taking cognizance of an offence" by the Court has to be distinguished from the filing of the complaint by the complainant. This issue has been explained by the Hon'ble Supreme Court in the case of Narsingh Das Tapadia vs. Goverdhan Das Partani and Anr., reported in 2000(7) SCC 183 : "8. Taking cognizance of an offence" by the Court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied his mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence (Narayandas Bhagwandas Madhavdas vs. State of W.B. and Gopal Das Sindhi vs. State of Assam).'" In the present case, however, it is not in dispute that cognizance of the offences alleged to have been committed by the petitioners was taken by the learned Magistrate on 8 June, 2006. Thus, I do not consider it necessary to refer to all the decisions which were cited before me on this point for adjudication of the subject controversy. 22. IN course of hearing, however, it was brought to my notice that in another column of the same form, there was a misdeclaration. This was in respect of column 20 [c]. Against this column, the petitioner was required to disclose as to whether any Court issued an order prohibiting the petitioner's departure from India or not. The case of the respondents is that the petitioner had made a mis- declaration by giving a negative response in that column as at that point of time, there was a subsisting order containing such prohibition. It has also been submitted that the chargesheet has also been issued subsequently, and considering the gravity of the offence alleged to have been committed by the petitioner the passport to the petitioner ought not to be released. It has also been submitted that the chargesheet has also been issued subsequently, and considering the gravity of the offence alleged to have been committed by the petitioner the passport to the petitioner ought not to be released. The question as to whether a passport ought to be impounded or not is required to be considered by the passport authority. The mere fact that certain conditions specified in section 10(3) of the Act on the basis of which a passport can be impounded subsists in a given case cannot by itself result in impounding of a passport automatically. 23. ON this count, in my opinion, to ascertain whether a misdeclaration has been made in the passport renewal application, on which no notice to show cause was issued earlier, a fresh show-cause notice is required to be issued. I cannot direct an order of impounding a passport to continue as the impounding order was passed on a different ground, and I have already found the impugned order to be unsustainable on the ground on which it was issued. The misdeclaration or suppression alleged to have been made by the petitioner, for which notice to show-cause was issued in my opinion was not a misdeclaration or suppression. The impugned order was passed without compliance with the principles of natural justice, and the order also suffers from the vice of non-application or mind. It would be for the passport authorities to decide whether there is any further ground for impounding the passport and if according to such authority such grounds subsist, they shall be at liberty to proceed afresh with notice to show- cause against the writ petitioner. But the impugned order impounding the petitioner's passport cannot be sustained and the same is quashed. 24. 1 AM, however, not directing release of the passport immediately, as the order requiring the petitioner to surrender the passport to the Investigating Officer appears to be subsisting. Moreover, in their reply, a case has sought to have been made out by the respondents for proceeding against the petitioner afresh under section 10(3) of the Passport Act, 1967. Accordingly, I give liberty to the respondent passport authorities to initiate fresh proceeding to impound the passport of the petitioner if they are satisfied that grounds for initiating fresh proceeding subsists. Accordingly, I give liberty to the respondent passport authorities to initiate fresh proceeding to impound the passport of the petitioner if they are satisfied that grounds for initiating fresh proceeding subsists. In the event no such proceeding is initiated within three weeks from the date certified copy of this order is available, the passport of the petitioner shall be returned, subject to any subsisting direction of the Criminal Court on the aspect of retention of passport. In the event such proceeding is initiated within the time prescribed, then the respective parties shall be at liberty to take steps as may be permissible in law. The writ petition stands allowed in the above terms. 25. THERE shall, however, be no order as to costs.