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2019 DIGILAW 2438 (ALL)

Jyotinder Singh Randhawa v. State of U. P.

2019-10-24

RAJEEV SINGH

body2019
ORDER : Rajeev Singh, J. 1. Heard Mr. Arun Sinha, learned counsel for the applicant, Mr. Aniruddh Kumar Singh, learned A.G.A. for the State and perused the record. 2. The present application has been filed under Section 482 Cr.P.C. for quashing the order dated 06.07.2019 for retaining the passport of the applicant, passed by learned Chief Judicial Magistrate, Bahraich in Case No. 3740 of 2018, under Sections 9/27/29/31/32/39/44/48A/49B/50/51(IC)/52/38V of the Wildlife (Protection) Act, 1972 and Section 26 of the Forest Act, 1927, Range-Motipur, Katarniyaghat, District Bahraich and to release the passport. 3. Learned counsel for the applicant submitted that the applicant is a renowned and acclaimed Golfer who has represented India across the Globe and has been awarded Arjuna Award by Hon'ble the President of India and is having no criminal antecedents. He further submitted that the applicant was falsely implicated in the aforesaid case by the Forest Officials and nothing, as claimed by the Forest Officials, has been recovered from the applicant or from his car. The "Jungle Fowl" which is alleged to have been hunted by the applicant and allegedly recovered from the vehicle of applicant does not come in any of the Schedule of Animal and their Species as provided under Wild Life (Protection) Act, 1972. 4. Learned counsel for the applicant further submitted that the penalty in the Wild Life (Protection) Act, 1972 has been provided under Section 51, under which the accused may be punished with the imprisonment which shall not be less than three years or with fine which may extend to Rs. 25,000/- but may extend to seven years with fine which shall not be less than Rs. 10,000/-. He further submitted that the applicant was enlarged on bail by this Court in the aforesaid case vide order dated 21.02.2019 in Bail Application No. 1402 of 2019 with the directions that the "accused-applicant" will co-operate in the investigation of the case and will also deposit his passport till submission of report under Section 173 Cr.P.C., it was further directed that the decision with regard to the retention of the passport will be taken by the trial court after the report so submitted under Section 173 Cr.P.C. 5. Learned counsel for the applicant further submitted that the applicant was detained by the Forest Officials on 26.12.2018 and the Case was registered against him bearing No. 68 of 2018-19, Range- Motipur, District Bahraich and the seizure report was sent by the Forest Officials to the Chief Judicial Magistrate, Bahraich. Thereafter, the complaint dated 22.02.2019 was filed in the court of Chief Judicial Magistrate, Bahraich under Section 55 of the Wild Life (Protection) Act, 1972 and on the same date the cognizance was taken by the court below on the aforesaid complaint without considering the fact that the complaint was filed under Section 55 of Wild Life (Protection) Act it is observed that the charge sheet was filed and the cognizance was taken on the charge sheet and he further submitted that in the case of complaint he had to follow the procedure. 6. Learned counsel for the applicant further submitted that on 21.02.2019 the applicant was enlarged on bail by this Court in Bail Application No. 1402 of 2019 and on the next date, i.e., on 22.02.2019, the Complaint Case was filed and after letting off from jail, the applicant moved an application before the Chief Judicial Magistrate, Bahraich on 05.03.2019 and prayed for release of his passport, but the application of the applicant was rejected vide impugned order with the observation that the Prosecuting Officer has reported that in case, the passport is returned to the applicant, he may leave the country. 7. Learned counsel for the applicant further submitted that the court below has committed error in considering the report of the Prosecuting Officer and making observations since the case is to be listed for framing of the charge, therefore, the presence of accused-applicant is necessary in court as well as at the time of recording of statement under Section 313 Cr.P.C. etc. and in case, the passport is released in favour of the applicant, he may go abroad and the trial of the case would be hampered. The judgment of the Hon'ble Supreme Court relied by the applicant was also not considered in true sense by the court below. 8. and in case, the passport is released in favour of the applicant, he may go abroad and the trial of the case would be hampered. The judgment of the Hon'ble Supreme Court relied by the applicant was also not considered in true sense by the court below. 8. Learned counsel for the applicant further submitted that the complaint was filed on 22.02.2019, under Section 55 of the Wild Life (Protection) Act, 1972 in the court below and though the applicant was in custody but the charge was not framed and there is no explanation recorded by the court below as to why the charge could not be framed. 9. Learned counsel for the applicant relied on the decision of Hon'ble Supreme Court in the case of Suresh Nanda vs. Central Bureau of Investigation, (2008) 3 SCC 674 , on paragraphs 18 and 19, and submitted that the trial court cannot impound the passport. 10. Learned A.G.A. opposed the prayer of the applicant and submitted that there is no illegality in the order passed, as the passport of the applicant was deposited under the order of this Court vide order dated 21.02.2019 in Bail Application No. 1402 of 2019. 11. After carefully considering the arguments of the counsel for the applicant as well as learned A.G.A. and going through the records, it is found that on the basis of allegation of hunting in the Tiger Reserve Forest, the applicant was detained on 26.12.2018 and the recovery memo/seizure memo was prepared by the Forest Officials and registered the Case No. 68 of 2018-19, under Sections 9/27/29/31/32/39/44/48A/49B/50/51(IC)/52/38V of the Wildlife (Protection) Act, 1972 and Section 26 of the Forest Act, 1927, Range-Motipur, Katarniyaghat, District Bahraich. Thereafter, the applicant was enlarged on bail by this Court vide order dated 21.02.2019 with the condition that the accused/applicant will deposit his passport before the trial court, till the submission of report under Section 173 Cr.P.C., after the report so submitted further decision with regard to the retention of the passport will be taken by the trial court. It is also found from the record that on 22.02.2019, the complaint was filed under Section 55 of the Wild Life (Protection) Act, 1972. The provision of Section 55 (supra) is reproduced as under- "[55. It is also found from the record that on 22.02.2019, the complaint was filed under Section 55 of the Wild Life (Protection) Act, 1972. The provision of Section 55 (supra) is reproduced as under- "[55. Cognizance of offences.-No court shall take cognizance of any offence against this Act except on the complaint of any person other than- (a) the Director of Wild Life Preservation or any other officer authorised in this behalf by the Central Government; or [(aa) the Member-Secretary, Central Zoo Authority in matters relating to violation of the provisions of Chapter IVA; or] [(ab) Member-Secretary, Tiger Conservation Authority; or (ac) Director of the concerned tiger reserve; or] (b) the Chief Wild Life Warden, or any other officer authorised in this behalf by the State Government [subject to such conditions as may be specified by that Government]; or [(bb) the officer-in-charge of the zoo in respect of violation of provisions of section 38-J; or] (c) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Central Government or the State Government or the officer authorised as aforesaid.]" 12. As no such presumption has been shown in the complaint filed by the Forest Officials that in case, the accused-applicant is released on bail, then he would flee away from the country and will not cooperate in the trial of the case, but merely on the basis of anticipation mentioned in the report of the Prosecuting Officer, the court below presumed that the applicant would flee away and the proceedings of the trial would be hampered. 13. The Provisions of the Sections 10(3) and 10(4) of the Passports Act, 1967 (hereinafter referred as "the Act") provides that the passport authorities are empowered to impound/revoke the passport in case, the criminal proceeding is pending against the holder. The Provisions of Sections 10(3) and 10(4) of The Act are reproduced as under- "10. 13. The Provisions of the Sections 10(3) and 10(4) of the Passports Act, 1967 (hereinafter referred as "the Act") provides that the passport authorities are empowered to impound/revoke the passport in case, the criminal proceeding is pending against the holder. The Provisions of Sections 10(3) and 10(4) of The Act are reproduced as under- "10. Variation, impounding and revocation of passports and travel documents.- (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,- (a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof; (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: [Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport.] (c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public; (d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; (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; (f) if any of the conditions of the passport or travel document has been contravened; (g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same; (h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made. (4) The passport authority may also revoke a passport or travel document on the application of the holder thereof." 14. It is not the case of the State that the Forest Officer has placed any report before the court below for impounding the passport of the accused-applicant and if no such request is moved by the Forest Officer before the court then presumption cannot be drawn at the time of passing the order for retaining the passport and the court below is bound to record its satisfaction for the same. The Forest Officials ought to have moved an application before the Passport Authority under the Provisions of The Act for impounding the passport during the trial. 15. In the case of Suresh Nanda (supra), Hon'ble Apex Court has categorically held that court cannot impound a passport. The relevant paragraphs Nos. 17, 18 and 19 of the aforesaid case are being reproduced as under- "17. In the present case, neither the Passport Authority 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 10-A 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). 18. In our opinion, even the court cannot impound a passport. Though, no doubt, Section 104 CrPC 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 of a "passport" is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while CrPC 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 (9th Edn., p. 133). This principle is expressed in the maxim generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the court under Section 104 CrPC though it can impound any other document or thing. 19. It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edn., p. 133). This principle is expressed in the maxim generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the court under Section 104 CrPC though it can impound any other document or thing. 19. For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10-A of the Act for impounding the passport of the appellant in accordance with law." 16. As it is evident from the record and also from the impugned order that no any written request was made by the Forest Official for retaining the passport before the court below and only the Prosecuting Officer has made his anticipation that in case, the passport of applicant is released, he may flee away This submission must be based on the instruction of the Authority. The trial court cannot retain the passport on the request of the Prosecuting Officer. 17. The Act is the complete code read with the Passport Rules, 1980 which contains the procedure for issuance and revocation of passport, Section 10 of the Act clearly provides the procedure for impounding the passport, in case, any criminal proceeding is initiated against the holder, therefore, it is appropriate that the opposite party may approach to the Passport Authority for impounding of the passport of the applicant. 18. In view of the above facts and discussions, the present application is allowed. The impugned order dated 06.07.2019 is quashed. The passport of the applicant be handed over to him forthwith. However, it shall be open to the opposite party to approach to the Passport Authority under the Provisions of the Act for impounding the passport of the applicant in accordance with the law.