Jharkhand High Court
Hitesh Kumar R. Jain @ R. Hitesh ... vs The State Of Jharkhand on 27 August, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No.161 of 2021
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Hitesh Kumar R. Jain @ R. Hitesh Jain @ Hitesh Kr. R. Jain, aged
about 33 years, son of Rajendra Kumar Jain, resident of 9, Pipeline,
Vijay Nagar, PO and PS-Pipeline Main Road, Bangalore-560023
(Karnataka) ... ... Petitioner
---V E R S U S---
1.The State of Jharkhand
2.Sripati Singh (since deceased) through his son Gaurav Singh,
resident of Belwatikar, Daltonganj (Medininagar), PO Daltonganj,
PS- Town, District-Palamau (Jharkhand)... ... Respondents
PRESENT:
HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For Petitioner : Mr. Keshav Murthy, Advocate
Mr. Amritansh Vats, Advocate
For the State : Mrs. Niki Sinha, Spl.PP
For the Opp. Party : Mr. Rajeev Ranjan Tiwary, Advocate
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C.A.V on 18.08.2021 PRONOUNCED ON : 27/08/2021
Heard Mr. Keshav Murthy, the learned counsel assisted by
Mr. Amritansh Vats, the learned vice counsel appearing on behalf of the
petitioner, Mr. Rajeev Ranjan Tiwary, the learned counsel appearing on
behalf of the Opposite Party and Mrs. Niki Sinha, the learned counsel
appearing on behalf of the respondent State.
2. This writ petition has been heard through Video
Conferencing in view of the guidelines of the High Court taking into
account the situation arising due to COVID-19 pandemic. None of the
parties have complained about any technical snag of audio-video and
with their consent this matter has been heard.
3. The petitioner has filed this petition for quashing the order
dated 21.01.2021 contained in Annexure-4 in Complaint Case
No.1839/2015 pending in the court of learned Judicial Magistrate, First
Class, Palamau. The further prayer is made for direction upon the
concerned court to forthwith release the passport of the petitioner.
4. The complaint cases, being Complaint Case No.1833/2015
and Complaint Case No.1839/2015 were lodged against the petitioner
in the court of learned Judicial Magistrate, First Class, Palamau for the
offences punishable under section 420 IPC read with section 138 of the
Negotiable Instruments Act. In the aforesaid cases, cognizance against
the petitioner was taken vide order dated 04.07.2016 and thereafter
the discharge application filed by the petitioner was rejected vide order
dated 13.06.2019. The same was challenged before this Court under
section 482 Cr.P.C in the criminal proceeding being
Cr.M.P.No.2635/2017 and Cr.M.P.No.2655/2017. The said Cr.M.Ps were
decided by this Court vide order dated 17.12.2019 whereby the entire
criminal proceeding arising out of the aforesaid complaint cases lodged
against the petitioner were quashed. The petitioner after quashing of
the said order, moved before the court of learned Judicial Magistrate,
First Class, Palamau for release of the passport in view of the fact that
the criminal proceeding have been quashed. The respondent no.2-
complainant was also heard in that application and by order dated
06.01.2020 the learned court has been pleased to direct the release of
the passport in favour of the petitioner.
5. The complainant respondent no.2 preferred Special Leave
to Appeal (Criminal) No.252-253-2020 arising out of final judgment and
order dated 17.12.2019 passed by this Court in Cr.M.P.No.2635/2017
and Cr.M.P.No.2655/2017. The said Special Leave Petition was taken by
the Hon'ble Supreme Court on 20.01.2020 whereby notices were issued
upon the petitioner by the even dated order.
6. After passing of the said order of the Hon'ble Supreme
Court, the complainant respondent no.2 filed a petition before the
Judicial Magistrate, First Class, Palamau to retain the passport as the
matter is pending before the Hon'ble Supreme Court. By order dated
21.01.2020 the learned Magistrate directed not to release the passport
of the petitioner till further order.
7. Aggrieved with this, the petitioner has filed this writ
petition before this Court.
8. Mr. Keshav Murthy, the learned counsel for the petitioner
assailed the impugned order dated 21.01.2020 on the ground that the
concerned court has already passed the order of release on 06.01.2020
and by order dated 21.01.2020 directing not to release the passport of
the petitioner amounts to review of the order passed by the concerned
court which is barred under section 362 Cr.P.C. He further submitted
that the Passport Act is special law while the Cr.P.C is general law.
Impounding of the passport is provided under section 10(3) of Passport
Act. According to him, it is well settled principle of law that special law
prevails over general law. He further submitted that before the Hon'ble
Supreme Court the order dated 06.01.2020 was not disclosed by the
complainant and that is why the Hon'ble Supreme Court has passed the
order to file any objection in the concerned court. He further submitted
that the case against the petitioner has already been quashed and
mere pendency of the appeal cannot be a ground to review the prayer
for release of the passport. He further relied in the case of "Suresh
Nanda v. Central Bureau of Investigation" reported in (2008) 3 SCC
674. Paragraph no.18 of the said judgment is reproduced herein below:
"18. In our opinion, even the court cannot impound a
passport. Though, no doubt, Section 104 CrPC 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 of a "passport"
is provided for in Section 10(3) of the Passports Act. The
Passports Act is a special law while CrPC 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
Edn., p. 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 CrPC
though it can impound any other document or thing."
9. On the other hand, Mr. Rajeev Ranjan Tiwary, the learned
counsel appearing on behalf of the complainant-respondent no.2
submitted that since the order has been passed by the Hon'ble
Supreme Court that is why this objection was filed and the learned trial
court has rightly directed not to release the passport. He submitted that
the petitioner has filed the caveat before the Hon'ble Supreme Court
and he has not disclosed the same before the Hon'ble Supreme Court.
Mr. Tiwary, the learned counsel further submitted that the passport in
question was deposited as surety and the same is neither impounding
nor seizure by the concerned court.
10. The argument of Mr. Tiwary, the learned counsel for the
complainant respondent no.2 has been denied by way of reply of
Mr. Murthy, the learned counsel for the petitioner. He submitted that
caveat was filed but without caveat clearance the said matter was
heard. He submitted that complainant before the Supreme Court has
not disclosed about the order dated 06.01.2020.
11. It is an admitted fact that the criminal case filed against
the petitioner have been quashed by this Court by order dated
17.12.2019 in Cr.M.P.No.2635/2017 and Cr.M.P.No.2655/2017. Pursuant
to that the petitioner moved before the concerned court for release of
the passport and the order dated 06.01.2020 has been passed by the
concerned court for release of the passport and by order dated
21.01.2020 the concerned court directed not to release the passport
taking note of the observation of the Hon'ble Supreme Court. The trial
court has already passed the order on 06.01.2020 for release of the
passport and by order dated 21.01.2020 he directed not to release the
passport which amounts to review of the order which is barred under
section 362 Cr.P.C. It is well settled that under section 362 Cr.P.C save
as otherwise provided by the Code or by any other law for the time
being in force, no Court, when it has signed its judgment or final order
disposing of the case, shall alter or review the same except to correct a
clerical or arithmetical error. The Hon'ble Supreme Court on 20.01.2020
on submission of the complainant-respondent no.2 to the effect that
the petitioner has moved before the trial court for release of the
passport, observed to the effect that respondent no.2- complainant
may make their objection before the concerned court. The order dated
06.01.2020 was already passed by the concerned court and the same
was not brought into the knowledge of the Hon'ble Supreme Court and
it was submitted that the petitioner has moved the petition for release
of the passport and that is why that order has been passed by the
Hon'ble Supreme Court. Had the correct position was demonstrated
before the Hon'ble Supreme Court, the said observation may not have
been there. Mere pendency of the appeal when the main case has
already been quashed, there is no ground of not releasing of the
passport in favour of the petitioner and the same is being governed by
Special Law being the Passport Act.
12. In view of the above facts and the discussions, the
impugned order dated 21.01.2020 passed in Complaint Case
No.1839/2015 amounts to review of the order dated 06.01.2020 which
is not permissible. Accordingly, the same is quashed.
13. The concerned court is directed to release the passport of
the petitioner forthwith.
14. The instant petition [W.P.(Cr.) No.161 of 2021] stands
allowed and disposed of.
15. I.A if any also stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Jharkhand High Court, Ranchi
Dated 27/08/2021
NAFR /SI,
