IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
The Hon’ble Justice Madhumati Mitra
C.R.R. 392 of 2019
The State of West Bengal Anr.
Advocate for the Petitioner : Mr. Moyukh Mukherjee
Mr. Koustav Lal Mukherjee
Mr. Abhijit Singh
Advocate for the State : Mr. Abhishek Sinha
Mr. Sabir Ahmed
Judgment on : 10.07.2019
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/Section420/Section494 of the Indian Penal Code.
By the impugned order the Learned Magistrate has rejected the
prayer for return of passport of the petitioner.
which are necessary for disposal of this application are as
Opposite party no.2 lodged an FIR with Lake Town Police Station
being no.75/2017, dated 23.05.2017 under Sections 498A/Section420/Section494 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
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.
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.
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.
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
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.
reported in AIR 2008 SC 1414.
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.
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”. Thus, the word “impounding” really means retention of
possession of a good or a document which has been seized.”
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.
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.
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.
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.
Impugned order passed by the Learned Magistrate is not
sustainable in law and requires to be interfered with.
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.
C.R.R. No. 392 of 2019 is disposed of accordingly.
Certified copy of case diary be handed over to the Learned Advocate
appearing for the State immediately.
Urgent Photostat certified copy of this judgment, if applied for, be
given to the parties, upon compliance with all necessary formalities.
(Madhumati Mitra, J.)