Konapur Mathada Nagaraj vs The State Of Andhra Pradesh
2021 Latest Caselaw 259 AP

     HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI

              Criminal Petition No.6074 of 2020
ORDER:

This Criminal Petition is filed under Sections 437 (3) of

Code of the Criminal Procedure, 1973 (for short 'Cr.P.C.')

seeking relaxation of the condition of depositing Passport of the

petitioner, which was already deposited in the court through a

common memorandum dated 18.11.2020 and order to release

and return the passport permitting his travel to Sharjah of

United Arab Emirates (U.A.E.) for a period of three months.

2. The petitioner, who is A.8 in C.C.No.288 of 2019 on the

file of Principal Junior Civil Judge, Ongole, was granted bail

with a condition to deposit his passport before the Principal

Junior Civil Judge, Ongole within a week. The petitioner

deposited his passport bearing No.Z4151581 through a common

memo dated 18.11.2020 in three cases i.e. Crl.M.P.No.12 of

2020 in C.C.No.288 of 2019, Crl.M.P.No.11 of 2020 in

C.C.No.289 of 2019 and Crl.M.P.No.10 of 2020 in C.C.No.290 of

2019. Thereafter, the petitioner filed an application under

Section 437 (3) (a) of Cr.P.C., before the Principal Junior Civil

Judge, Ongole, seeking relaxation of the condition of deposit of

passport and to release and return the passport permitting his

travel to Sharjah of United Arab Emirates (U.A.E.) for a period of

three months. But, the court below, while distinguishing the

judgment of the Hon'ble Supreme Court rendered in Suresh

Nanda v. CBI (2008 (3) SCC 674), held that in the case on hand,

the police did not seize the passport and due to imposing of 2 LK, J

CRLP.No.6074 of 2020

condition at the time of granting bail, the petitioner deposited

the passport and that the respondent filed petition under

Section 10 (3) (e) of the Passports Act to send the passport to the

Passport Authority for impounding the same. The Court below

also held that as per the principle laid down by the Apex court,

even the court has no power to impound and can only send the

passport to the passport authority for taking decision whether to

impound or not in accordance with law and that the petitioner

did not give details of travel schedule, place of stay and other

particulars. Accordingly, the court below dismissed the

application.

3. Heard Sri G. Rama Gopal, learned counsel for the

petitioner and the learned Public Prosecutor for the respondent-

State.

4. Learned counsel for the petitioner submits that the

petitioner is alleged to have committed an offence under Section

34 (a) read with 34 1 (ii) of A.P. Excise Act and he was arrayed

as A.8 in C.C.No.288 of 2019. As per the complaint, the incident

took place on 30.04.2014. Initially, the name of the petitioner

was not there in the FIR, but he was arrayed as A.8 in the

charge sheet basing on the vague allegations stating that A.6 to

A.8 are the associates of A.5. He submits that the petitioner was

in abroad at that particular point of time and in support of his

contention, the petitioner filed xerox copies of his passport

before the court wherein it clearly shows that from 18.04.2014

to 19.06.2014, the petitioner was abroad. He further submits 3 LK, J

CRLP.No.6074 of 2020

that the court, on 17.11.2020, while granting bail has directed

the petitioner to deposit his passport before the court within a

week. The Court below has no power to seize and impound the

passport, as such, he filed an application seeking modification

of that condition.

Having regard to the facts and circumstances of the case

and the submissions of the counsel, it appears that the court

below, considering the judgment of the Hon'ble Supreme Court

in Suresh Nanda v. CBI (stated supra), however, distinguished

the same on facts and dismissed the application. The Hon'ble

Supreme Court in Suresh Nanda v. CBI1, held thus:

"In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport authority under Section 10(3).

15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 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 law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing."

In the light of the judgment passed by the Hon'ble

Supreme Court, neither the court nor the police have

jurisdiction to pass an order directing to deposit the passport

2008 (3) SCC 674 4 LK, J

CRLP.No.6074 of 2020

and even if the court feels that the petitioner is likely to travel

abroad, the prosecution has the remedies available under the

Passports Act. In view of the same, the order passed by the

court below as far as directing the petitioner to deposit the

passport is not sustainable. The order dated 17.11.2020

passed by the Principal Junior Civil Judge, Ongole, in

Crl.M.P.No.12 of 2020 in C.C.No.288 of 2019 is set aside only to

the extent of refusing to return the passport.

Accordingly, the Criminal Petition is disposed of directing

the court below to release and return the passport to the

petitioner forthwith.

___________________________ LALITHA KANNEGANTI, J Date: 21.01.2021

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