HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
CRIMINAL PETITION No.10094 of 2022
ORDER:
The petitioner is accused No.4 in Crime No.192 of 2020 on Robertsonpet Police Station, for the offences under Sections 302, 109 read with Section 34 of Indian Penal Code.
2. The petitioner was initially arrested and subsequently released on bail by order dated 24.08.2020 in Criminal Miscellaneous Petition 108 of 2020 in Crime No.192 of 2020 by the Sessions Judge, Krishna Division, Machilipatnam.
3. The order granting bail was subject to 13 conditions set out in the said order itself. Condition No.5 required the petitioner to hand over his passport to the investigating officer till the conclusion of the trial. Condition No.12 required the petitioner to appear for each and every adjournment during the enquiry/trial and failure to attend would result in cancellation of the bail automatically.
4. The petitioner had subsequently moved Crl.M.P.No.188 of 2022 for relaxation of condition No.5 and 2 for return of his passport on the ground that the passport of the petitioner cannot be retained by the police as such retention would amount to impounding of the passport. This application was dismissed by the Sessions Judge on 23.09.2022. The Sessions Judge after noticing the judgment of the Hon'ble Supreme Court in Suresh Nanda v/s Central Bureau of Investigation1 had held that relaxation of condition No.5 could result in non compliance of condition No.12 and it would be difficult for the prosecution to secure the presence of the petitioner at the time of the trail.
5. The Hon'ble Supreme Court in Suresh Nanda v/s CBI at para No.14 had observed as under:
"In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 of Cr.P.C., 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 a passport is provided for in Section 10 (3) of the Passports Act. The Passports Act is a special law while the Cr.P.C., is a general law. It is well settled that the special prevails over the general law vide G.P.Singh's Principles of Statutory Interpretation (9th Edition pg.133). This principle is expressed in the maximum Generalia specialibus non derogant. Hence, impounding of a passport 1 AIR 2008 SC 1414 3 cannot be done by the Court under Section 103 Cr.P.C., though it can impound any other document or thing."
6. In the present case, it cannot strictly be said that the passport of the petitioner has been impounded. However the practical effect of deposit of the passport with the investigating officer would amount to impounding of the passport.
7. The finding of the Sessions Judge that return of passport could result in violation of condition No.12 of the bail order may not be correct. These two conditions are independent of each other and non-compliance of condition No.12 would automatically result in cancellation of the bail itself.
8. In view of the Judgment of the Hon'ble Supreme Court, it would be appropriate to set aside the order of the Sessions Judge in Crl.M.P.No.188 of 2022 dated 23.09.2022 and direct that the said condition No.5 in the bail order dated 24.08.2020 is relaxed.
9. However, this shall not preclude the investigating officer to take necessary steps to ensure the presence of the 4 petitioner during the investigation of the crime and during the trial of the case. It is further clarified that condition No.12 remains intact and non appearance of the petitioner in terms of condition No.12 would result in automatic cancellation of the bail of the petitioner.
10. Accordingly, this Criminal Petition is allowed. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ R. RAGHUNANDAN RAO, J 02.01.2023 RKS/KPV 5 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO CRIMINAL PETITION No.10094 of 2022 02.01.2023 RKS/KPV