Telangana High Court
Gazula Govinda Rao vs The State Of Telangana on 12 January, 2024
THE HON'BLE SMT. JUSTICE T. MADHAVI DEVI
CRIMINAL PETITION No.240 of 2024
ORDER:
In this Criminal Petition, petitioner is challenging the order dated 18.08.2023 in Crl.M.P.No.3201/2023 on the file of XII Additional Chief Metropolitan Magistrate, City Criminal Courts, Nampally, Hyderabad, in Crime No.39 of 2023 and to pass such other order or orders.
2. The petitioner has filed an application under Section 451 of Cr.P.C. with a prayer to grant interim custody of the passport bearing No.T6479961 in order to enable the petitioner to go to Australia but the Trial Court has dismissed the application by observing that the petitioner is a permanent resident of Australia and further that the petitioner has not mentioned the purpose for which he intends to visit Australia. Therefore, his presence may not be secured and he may abscond, which would cause hurdles to the progress of the investigation and therefore, it is not a fit case to allow the petition.
3. Learned counsel for the petitioner appearing for the petitioner submitted that the petitioner is working in Australia and if the petitioner does not join his job, he may lose his livelihood. It is submitted that the petitioner is ready to furnish any surety/security and he should be permitted to visit Australia. He has also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Suresh Nanda Vs. CBI, reported in CDJ 2008 SC 161 and also the judgment of High Court of this Court in the case of Y.Usha Gayatri Vs. State of A.P., Women P.S.Visakhapatnam, reported in CDJ 2020 APHC 290, in support of his contentions.
4. Learned counsel for the petitioner further submitted that he has earlier approached this Court in W.P.No.5247 of 2023 and vide orders dated 07.07.2023, this Court had directed the Police to consider the documents furnished by the petitioner along with the explanation and the police shall examine the same and conclude the matter as to whether it is a Civil or Criminal matter and that the entire investigation was directed to be complete with a period of one month from the date of the order. It is submitted that the Police have not complied with the said directions of this Court, though the petitioner has complied with the 41- A Cr.P.C. notice. He further submitted that only the Passport authorities can seize the passport, but not the police authorities. It is also submitted that the matter against the order in Crl.P.M.P.No.5247 of 2020 was carried up to the Hon'ble Supreme Court and Hon'ble Supreme Court has declined to interfere with the same and therefore the Police ought to have concluded the investigation within the time granted. He further submitted that LOC issued against the petitioner has already been cancelled by this Court in W.P.No.16265 of 2023 vide order dated 26.07.2023 and therefore, there is no look-out notice in respect of the petitioner and there is no impediment for him to travel abroad.
5. Learned Assistant Public Prosecutor was also heard who opposed the said contentions of the petitioner and supported the orders of the trial Court.
6. Having regard to the rival contentions and the material on record, this Court finds that the petitioner has a permanent resident status in Australia and though, he is a citizen of India, having being granted permanent resident status, he may not be returned to India and there is no process under which the Courts can ensure his presence before the Courts in India.
7. As regards the contentions of the learned counsel for the petitioner that this Court had granted one month time to conclude the investigation and the same has also been confirmed by the Hon'ble Supreme Court and due to the default of the police, the petitioner should not be made to suffer, this Court is of the opinion that the directions of this Court were to police to conclude the investigation and determine the nature, but such direction cannot be considered as permission to the petitioner to travel abroad, till he is acquitted from the case or the case is closed against him. Learned counsel for the petitioner pointed out that the respondents have not filed any documents before any Court till date seeking extension of time before the trial Court and therefore, the benefit should be given to the petitioner in order to enable him to avail his right of pursuing his career. However, as observed above, the failure on the part of the respondents to determine the nature of the dispute ;alone cannot be construed as dismissal of the case against the petitioner.
8. As regards the contentions of the petitioner that it is only the passport officer who can impound the passport and the reliance on judgment of the Hon'ble Supreme Court in the case of Suresh Nanda (cited supra), in support of in the said contention, this Court finds that in Para 17 of the order the Hon'ble Supreme Court has held that the Police may have the power to seize a passport under Section 102(1) of Cr.P.C., but it does not have power to impound the same and that impounding of a passport can only be done by the passport authority under Section 10(3) of the Passport Act, 1967. The Hon'ble Supreme Court has also observed 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 and if after seizure of a property or document, the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document. However, this observation was made where CBI has retained the passport of the petitioner therein, whereas in this case before this Court, though the passport was initially seized by the police, it was deposited into the Court when the petitioner had returned to India and was arrested on account of Lookout Notice issued for his arrest and the passport was deposited into the Court and therefore, the facts and circumstances are distinguishable and it cannot be said to be a case of impounding of the passport and the passport is only in the interim custody of the Court.
9. In the case of Y.Usha Gayatri (cited supra), the Co-ordinate Bench of Andhra Pradesh High Court, has relied upon the judgment of the Hon'ble Supreme Court cited supra to direct the Ist Additional Chief Metropolitan Magistrate at Visakhapatnam, to return the passport that is seized by the police and produced before the Court. However, this decision is only of persuasive value and is not binding on this Court. Further, in this case, the petitioner has not challenged the direction to deposit the passport before the Court, but he is only seeking interim custody of the passport. Therefore, these two judgments are not strictly applicable to the case on hand.
10. As far as the cancellation LOC issued against the petitioner is concerned, this Court is of the opinion that such an order was passed after taking into account the state of investigation and that the petitioner has visited to India and was arrested, released on bail and is presently residing in India and therefore, LOC was not required. However, cancellation of LOC would not be giving permission to the petitioner to travel outside the country and consequently will not entitle him to receive the passport. It is only the Trial Court which is empowered to consider the application and having consideration to the totality of the facts to pass appropriate orders thereon.
11. In view of the same, this Court is not inclined to accept the contention of the petitioner and it is accordingly dismissed.
12. Accordingly, the Criminal Petition is disposed of.
13. Miscellaneous applications, if any pending, shall also stand closed.
_____________________________ JUSTICE T.MADHAVI DEVI Date: 12.01.2024 Note: Issue Today.
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