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2019 DIGILAW 707 (CAL)

Sukumar Rajgopalan v. State of West Bengal

2019-07-10

MADHUMATI MITRA

body2019
JUDGMENT : Madhumati Mitra, J. Petitioner has challenged the impugned order dated 19.12.2018, passed by the Learned Additional Chief Judicial Magistrate, Bidhannagar North-24 Parganas, in connection with G.R.Case No.415/2017 arising out of Lake Town Police Station, Case No.75/2017 dated 23.05.2017 under Sections 498A/420/494 of the Indian Penal Code. 2. By the impugned order the Learned Magistrate has rejected the prayer for return of passport of the petitioner. 3. Facts which are necessary for disposal of this application are as follows:- 4. Opposite party no.2 lodged an FIR with Lake Town Police Station being no.75/2017, dated 23.05.2017 under Sections 498A/420/494 of the Indian Penal Code. Petitioner was released on bail vide order dated 13.06.2017 on certain terms and conditions. Thereafter, the Investigation ended in submission of charge-sheet against the petitioner and his brother. 5. Petitioner has stated that he has to travel to foreign countries on regular basis since 2002 in connection with his service. It has been contended on behalf of the petitioner that due to non-return of the passport petitioner cannot travel outside India. 6. From order dated 13.06.2017, it appears that the petitioner was enlarged on bail by the Learned Additional Chief Judicial Magistrate, Bidhannagar. At the time of granting bail, the petitioner was directed to submit his passport to the investigating officer. 7. Thereafter, on 25.07.2017 charge-sheet was submitted by the Investigating Officer after completion of investigation. That means, the petitioner was enlarged on bail during investigation. Another co-accused was granted bail by the High Court in CRM No.5386 of 2017 upon furnishing bond of Rs.5,000/- with two sureties of like amount among whom one must be local surety as reflected in order dated 17.12.2018 passed in G.R.Case No.415/2017. 8. On 10.08.2017, petitioner approached before the Learned Magistrate for getting back his passport on the ground that investigation had been completed. Learned Magistrate turned down the said prayer of the petitioner citing the decision of one of the co-ordinate benches of this Court in Sirichai Sasanarakhit Vs. the State of West Bengal (C.R.R. No.2315 of 2014). At the time of rejecting the prayer of the petitioner to return his passport the Learned Magistrate accepted the contention of the Learned Assistant Public Prosecutor that the return of passport to the accused would pave the escape route for the accused and he would not face trial. 9. the State of West Bengal (C.R.R. No.2315 of 2014). At the time of rejecting the prayer of the petitioner to return his passport the Learned Magistrate accepted the contention of the Learned Assistant Public Prosecutor that the return of passport to the accused would pave the escape route for the accused and he would not face trial. 9. Petitioner again on 19.12.2018 prayed for return of his passport and said prayer was also rejected by the Learned Magistrate. Learned Advocate appearing for the petitioner has strongly argued in favour of return of passport of the petitioner on the ground that the Learned Magistrate has no power to impound the passport. He has contended that the Magistrate committed an error by refusing to return the passport of the petitioner which cannot be done in view of Sub-Section (3)(e) of Section 10 of the Passport Act. In support of his contention he has placed reliance on a decision of our Apex Court in Suresh Nanda Vs. C.B.I., (2008) AIR SC 1414. 10. Learned Advocate appearing for the State has also contended that the power of police to seize passport does not extend to impounding of passport. According to his contention in the instant case, the passport of the petitioner is in custody of the Investigating Officer for a considerable period which amounts to impound of the passport. 11. In paragraph 12 of the judgment as cited by the Learned Counsel for the petitioner our Apex Court drew a difference in between seizure of a document and impounding of a document. Paragraph 12 of the judgment reported in AIR 2008 SC 1414 is cited hereunder:- "12. It may be mentioned that there is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document the said property or document is retained for some period of time, when such retention amounts to impounding of the property/or document. In the Law Lexicon by P.Ramanatha Aiyar (2nd Edition), the word "impound' has been defined to mean "to take possession of a document or thing for being held in custody in accordance with law". In the Law Lexicon by P.Ramanatha Aiyar (2nd Edition), the word "impound' has been defined to mean "to take possession of a document or thing for being held in custody in accordance with law". Thus, the word "impounding" really means retention of possession of a good or a document which has been seized." 12. In the instant case, the Learned Magistrate on 13.06.2017, directed the accused/petitioner to submit his passport to the Investigating Officer at the time of granting bail. 13. In the decision cited by the Learned Counsel for the petitioner a question arose whether a passport can be impounded as a condition for grant of bail. Our Apex Court was pleased to observe that by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport. 14. The above discussions led me to observe that the Court does not have the power to impound the passport and it can be done only by passport authority under Section 10(3) of the Passport Act. 15. Moreover, the present criminal proceeding is pending against two accused persons and both the accused had been granted bail. One of the accused was granted bail by the High Court and other accused i.e. the present petitioner was granted bail by the Learned Additional Chief Judicial Magistrate. So far as other accused is concerned, there was no such condition regarding seizure or impound of passport. The orders passed by the Learned Magistrate regarding refusal of the prayer for return of the passport of the petitioner were mainly based on the apprehension that the accused would not come back to face the trial. In order to ensure the attendance of any accused before the Court, the Magistrate may impose any condition which the Magistrate may think fit and proper in lien of impounding of the passport as the same cannot be done by the Court under Section 104 of the Code of Criminal Procedure. 16. Impugned order passed by the Learned Magistrate is not sustainable in law and requires to be interfered with. 17. Accordingly, the impugned order is set aside. Learned Magistrate is requested to direct the Investigating Officer to hand over the passport to the petitioner within 15 days from the date of communication of this order. 16. Impugned order passed by the Learned Magistrate is not sustainable in law and requires to be interfered with. 17. Accordingly, the impugned order is set aside. Learned Magistrate is requested to direct the Investigating Officer to hand over the passport to the petitioner within 15 days from the date of communication of this order. However, the Learned Magistrate is at liberty to impose any suitable condition which he may think fit and proper to ensure the attendance of the petitioner during trial. 18. C.R.R. No. 392 of 2019 is disposed of accordingly. 19. Certified copy of case diary be handed over to the Learned Advocate appearing for the State immediately. 20. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance with all necessary formalities.