Andhra Pradesh High Court - Amravati
Konapur Mathada Nagaraj, vs State Of Andhra Pradesh on 21 January, 2021
Bench: Lalitha Kanneganti
HONOURABLE SMT. JUCTICE LALITHA KANNEGANTI
Criminal Petition No.6069 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 him to travel Sharjah of
United Arab Emirates (U.A.E.) for a period of three months.
2. The petitioner, who is A.18 in C.C.No.290 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
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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.18 in C.C.No.290 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.18
in the charge sheet basing on the vague allegations stating that
A.16 to A.18 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
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submits 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.
5. 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
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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.10 of 2020 in C.C.No.290 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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