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2011 DIGILAW 202 (CAL)

Sanjoy Saha v. UNION OF INDIA

2011-02-14

JAYANTA KUMAR BISWAS

body2011
JUDGMENT : The Court: - The petitioner in this art.226 petition dated October 1, 2010 is seeking a mandamus commanding the passport officer to issue him a passport. The petitioner was one of the accused in Belghoria P.S. Case No.29 dated February 26, 2002 under ss.121, 121A, 122, 123, 124A, 489B, 489C and 420 of the Indian Penal Code, 25 and 27 of the Arms Act, 1959 and 14 of the Foreigners Act, 1945. The Court of Session trying the offences delivered a judgment dated December 19, 2007 in the case acquitting the petitioner, but ordering confiscation of the seized articles including his passport, except the border register and the peon book of Calcutta Lodge. He did not appeal from the order, nor has he applied to the passport officer for issuing him a new passport. In view of the above-noted situation, I am unable to see how the petitioner, not applying to the passport officer according to the provisions of the Passports Act, 1967 and the rules made thereunder, can seek a mandamus commanding the passport officer to issue him a new passport. I do not find any reason to entertain the argument that since the order of confiscation of the Court of Session is void in the sense that after ordering the petitioner’s acquittal the Court could not order confiscation of his passport that had been seized by the investigating officer during investigation of the case, it should be set aside in exercise of power under art.226. There is no reason to say that the order of confiscation is void. In view of the provisions of s.452 of the Code of Criminal Procedure, 1973 the Court of Session possessed power to order confiscation of the petitioner’s passport even after ordering his acquittal. Whether on the facts and in the circumstances the order of confiscation was just and proper could be a question only in an appeal, if lodged by the petitioner under s.454 of the Code. The petitioner chose not to appeal from the order that was made as back as December 19, 2007. Whether on the facts and in the circumstances the order of confiscation was just and proper could be a question only in an appeal, if lodged by the petitioner under s.454 of the Code. The petitioner chose not to appeal from the order that was made as back as December 19, 2007. The order of the Court of Session, not challenged in the petition, even if was challenged, in my view, could not be upset in exercise of power under art.226, for such exercise of power would have amounted to exercise of power of the Criminal Court in an appeal under s.454 of the Code of Criminal Procedure, 1973 by the Writ Court. For these reasons, I dismiss the petition. No costs.