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Sukumar Rajgopalan vs The State Of West Bengal & Anr on 10 July, 2019

Form No.J(1)

IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side

Present:

The Hon’ble Justice Madhumati Mitra

C.R.R. 392 of 2019

Sukumar Rajgopalan

-Versus-

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
Baisali Basu

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.

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By the impugned order the Learned Magistrate has rejected the

prayer for return of passport of the petitioner.

Facts

which are necessary for disposal of this application are as

follows:-

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

brother.

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

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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

face trial.

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

3
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

4
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

5
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.)

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