Orissa High Court
Indrajit De vs Republic Of India (Cbi) ..... Opp. Party on 15 May, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 213 of 2025
An application under Section 442 of the Bharatiya Nagarik Suraksha
Sanhita (BNSS), 2023 , which corresponds to Section 397 of the Code of
Criminal Procedure Code.
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Indrajit De ..... Petitioner
-versus-
Republic of India (CBI) ..... Opp. Party
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For Petitioner : Mr. S.K. Padhi, Senior Advocate
along with by Mr. R. Hota, Advocate
For Opp. Party : Mr. Sarthak Nayak, Advocate (CBI)
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
15.05.2025
Savitri Ratho, J This application under Section 442 of the Bharatiya
Nagarik Suraksha Sanhita (BNSS), 2023, has been filed
challenging the order dated 03.04.2025 passed by the learned
Sessions Judge, Khurda at Bhubaneswar in Crl. Misc. Case
(CMC) No. 48 of 2025 rejecting the prayer of the petitioner made
under Section 483 (b) of BNSS (corresponding to Section 439 (b)
of Cr.P.C.) for setting aside/modification of the bail condition
no.(ii) of the petitioner. fixed by the learned Special C.J.M cum
A.C.J.M C.B.I Bhubaneswar while allowing the prayer for bail of
the petitioner on 09.10.2023.
ALLEGATIONS
2. An FIR was lodged on 15.05.2013 in Baliapal Police Station
- Baliapal P.S. case No 85 of 2013, against M/s Tower Infotech
Ltd and its directors for collecting public deposits and thereby
cheated the innocent depositors without returning their amount.
On the direction of the Hon'ble Apex Court made on 09.05.2014
in the case of Subrata Chattoraj Vs. Union of India, the
investigation of the case was transferred to the C.B.I and FIR no.
10(S) / 2014 -Kol corresponding to Special Case No. 5 of 2014 in
the Court of Special C.J.M, (C.B.l), Bhubaneswar. was registered
under Sections - 420, 120 B, 34 IPC read with Sections- 4, 5, and
6 of the PCMC Act against M/s Tower Infotech Ltd and its
Directors. Charge sheet dated 06.07.2016 was submitted Sections
- 420, 120 B, 34 IPC read with Sections - 4,5, and 6 of the PCMC
Act against M/s Tower Infotech Ltd and its Directors.
Supplementary charge sheet dated 26.12.2022 was submitted
under Sections- 420, 120 B, 34 IPC read with Sections-4, 5, and 6
of the PCMC Act in which the petitioner was arrayed as an
accused.
3. The accused Directors of the accused company M/s. Tower
Infotech Ltd., in criminal conspiracy with the directors of M/s.
EDEN Infraprojects Pvt. Ltd. namely Shri Amitav Patro and Shri
Indrajit De, (the petitioner) pursuant to a fraudulent agreement,
have dishonestly siphoned off the funds to the tune of Rs. 2.5
Crores, illegally collected by the accused company M/s. Tower
Infotech Ltd. from gullible investors. The petitioner Indrajit De
and Shri Amitav Patra, the two Directors of M/s. Eden Infra
Projects Pvt Ltd. On basis of an oral agreement, for construction
of a housing project at Maheshtala with Shri Ramendu
Chattopadhyay, the CMD of M/s. Tower Infotech Ltd., the money
was taken. By entering into criminal conspiracy money was
diverted from M/s. Tower Infotech Ltd. Which had collected the
money illegally from the investors, without having necessary
permissions regulatory authorities to collect the funds, with
criminal intent to misappropriate the same.
BACKGROUND
4. N.B.W. had been issued against the petitioner by the trial
Court. The petitioner along with other accused had approached
this Court n CRLMC 1054 of 2023 for quashing the proceedings
in S.P.E No.05 of 2014 pending before the Court of the learned
Special C.J.M, (C.B.l), Bhubaneswar and the impugned Charge
Sheet No. 21 dated 26.12.2022. Vide judgment dated 28.07.2023,
the CRLMC was allowed in part. While rejecting the payer to
quash the proceedings, the order dated 27.12.2022 issuing NBW
against the petitioner was quashed. The subsequent orders dated
06.01.2023, 20.01.2023 and 03.02.2023 in so far as they related to
the petitioner were quashed and the trial Court was directed to
issue summons to him for his appearance. The judgment in
CRLMC No. 1054 of 2023 has been annexed as Annexure 2 to
this CRLMC.
5. On 09.10.2023, the petitioner had appeared before the trial
Court is response to summons. His application under Section -
205 of the Cr.P.C was rejected, but his application to release him
on bail was allowed, imposing different conditions. The operative
portion of the order containing the conditions is extracted below:
i) He shall furnish cash security of Rs.5,00,000/- (rupees five
lakhs);
ii) He shall surrender his passport before the Court;
iii) He shall not tamper with the prosecution evidence in any
manner whatsoever;
iv) He shall not default in personal attendance of Court as and
when required."
6. Before surrendering his passport, the petitioner had been
abroad on a number of occasions which would be evident from
the copy of the passport annexed as Annexure 3 to this CRLMC.
7. After surrendering his passport in the Court, he had filed an
application before the Special C.J.M. (C.B.L), Bhubaneswar on
02.11.2023, for temporary release of his passport and to allow him
to visit USA for two months. The application was rejected by the
learned Court below for which he had filed CRL REV No. 690 of
2023. The CRL REV was allowed and it was directed that the
passport of the petitioner would be released in his favour for a
period of two months to facilitate his travel abroad. The operative
portion of the judgment is extracted below:-
"Conclusion:
In view of the foregoing discussions, the impugned order
dated 06.12.2023 passed by the learned Special
C.J.M.(C.B.I.), Bhubaneswar is hereby set aside. The
original passport bearing no. Z6948595 of the petitioner
which has been deposited before the learned trial Court in
pursuance of the order dated 09.10.2023 shall be released in
favour of the petitioner for a period of two months to
facilitate his travel to abroad subject to submitting the
itinerary/travel schedule and details of the duration and
place of stay in the USA before the learned trial Court and
the Court may impose such other conditions as would be
found necessary and expedient. The petitioner shall strictly
abide by the terms and conditions.
In the result, the criminal revision petition is allowed."
8. The petitioner proceeded to USA and after his return on
22.06.2024 deposited the passport in the Court below on
25.06.2024.
9. As wife of the petitioner who is staying in USA, tested
positive for COVID -19, the petitioner had filed CMC No. 909 of
2024 on 26.07.2024 before the learned trial court for modifying /
setting aside condition no ii of the of the bail order dtd.09.10.2023
as he was required to go to the US At short notice. By order
dt.23.08.2024, his application was rejected. The operative portion
of the order is extracted below:
"It is pertinent to mention here that a criminal court has no
power of review and accordingly has no power to modify its
own order. Once a criminal court has signed its judgment
or final order disposing of a case, then the power of the
Court ceases to modify or alter its own order or judgment
being a functus officio in view of the mandate of Section 362
of Cr.P.C. Considering the above facts and the mandate of
Section 362 of Cr.P.C., this court is of the considered view
that the petition filed by the accused-petitioner to modify the
order dtd. 09.10.2023 by deleting the second condition of the
said order is beyond the purview of law and not sustainable.
In the result, the petition dtd. 26.07.2024 filed by the accused
petitioner stands rejected. Accordingly, the Misc. case is
disposed of."
10. Challenging the order dated 23.08.2024, the petitioner had
filed CRLMA/169/2024 before this Court. During pendency of the
CRLMA, by order dated 27.09.2024, this Court had granted time
to the counsel for the CBI to file an objection as he claimed that
the petitioner was a "flight risk" and in the interregnum, permitted
the petitioner to travel to the US and directed for interim release of
his passport for a period of two months. The operative portion of
the order is extracted below:
"18. Regard being had to the aforementioned discussion and
the fact that earlier the petitioner was granted two months
travel permission to USA, to which he has meticulously
complied with and returned back to the country within
stipulated time, this Court feels it appropriate to allow the
prayer of the petitioner for two months travel to USA.
19. Accordingly, the learned trial Court is directed to release
the original passport bearing No.Z6948595 in favour of the
petitioner forthwith for a period of two months to facilitate
his travel to abroad, subject to submitting the itinerary/travel
schedule and details of the duration and place of stay in USA
before the learned trial Court and the trial Court may impose
any condition may deem fit and proper and expedient in the
present case. The petitioner shall furnish undertaking that he
would return to India and deposit the passport back in the
Court below."
11. The petitioner went to the US and after his return from the US
on 03.01.2025 deposited his passport in the Court below on
07.01.2025 On 03.02.2025 CRLMA was disposed permitting the
petitioner to move the learned Sessions Judge for redressal of his
grievances.
12. The petitioner filed Crl. Misc. Case No. 48 of 2025 of
2025 under Section 483(b) of BNSS before the learned Sessions
Judge, Bhubaneswar praying for modification of the condition
No.ii of the bail order dtd.09.10.2023 passed in SPE No.5 of 2014
by Id. Special CJM(CBI)-cum-ACJM, The Crl.M.C was rejected
on by order dated 03.02.2025
SUBMISSIONS
PETITIONER
13. Mr. S.K. Padhi, learned Senior Advocate appearing on
behalf of the petitioner has submitted that on two earlier
occasions, the passport of the petitioner has been released in order
to enable him to travel to the USA. He has complied with the
conditions imposed and has resubmitted his passport after his
return from the USA on both occasions.
14. He has submitted his family (wife and daughter) resides
in the USA and is wife is ailing for which he required to go to the
USA frequently and sometimes at short notice. Meena De, wife of
the petitioner is ailing. Certificate dated 24.02.2025 (Annexure 5)
mentions that Ms. Meena De she is suffering from Chronic
Fatigue Syndrome (ME/CFS) and Mast Cell Activation Syndrome
Report dated 09.04.2025 of the GoHeath - Rockville (Annexure
8) reveals that she had earlier been suffering from respiratory viral
infection.
15. The petitioner is a green card holder and as per the green
card norms is required to stay at least six months in every year in
USA to retain his Green Card status which he is enjoying since the
year 1996. Recently, as the US administration has become strict
with non-immigrants and Green Card holders, if the petitioner
fails to visit the USA and stay with his family, there is every
possibility of cancellation of his Green Card by the US
Administration.
16. During his last visit to USA from 06.11.2024 to
03.01.2025, the petitioner had been questioned at the USA
immigration point at the USA Airport for his delayed return to
USA being a USA Green Card holder for which an additional
stamping was made on his passport which is not the normal
procedure. He is required at times to go at short notice to the USA,
but obtaining permission takes time for which he is not able to go
on time.
17. He has submitted that if the condition no. (ii) is modified
passport and / or his passport is released permitting him to travel
abroad and and at any time, he is required to go abroad, he will
inform the court in advance. He has also submitted that at any
time if his presence is required, he will return within four days ,
without fail and submit an undertaking to that effect . He also
submitted that as the case is fixed for appearance of other accused
persons, so the chance of the trial commencing in the near future
is bleak.
18. He has further submitted that he has filed an interim
application in this CRLREV, for permission to go the USA for
two months to be with his family.
19. In support of his submissions for waiving condition No.ii
and release his passport , he has relied on the decisions of the
Hon'ble Apex Court in the case of Suresh Nanda vrs. Central
Bureau of Investigation : (2008) 3 SCC 674 and the decision
dated 05.02.2025 of the Bombay High Court in the case of
Mohammad Hanif Nurani vrs. The State of Maharashtra &
Another , in Criminal Application No. 434 of 2024 . decided on )
OPPOSITE PARTY
20. Mr. Sarthak Nayak, learned counsel appearing on behalf
of CBI has submitted that in view of the observation of the
Hon'ble Supreme Court in the case of Republic of India (CBI) vs
Shubhra Kundu, on 20.10.2023, that the CBI which is created
under a Statute cannot represent "Republic of India", the cause
title of the CRL REV should be amended. He opposed the prayer
of the petitioner for modifying condition No.(ii) in the bail order
regarding deposit of passport mainly on three grounds: -
i) Imposing a condition while granting bail, for deposit of
passport is not illegal.
ii) The allegations against the petitioner are serious, so he may
not return to face the trial if the passport is released.
iii) If the petitioner does not return to India to face the trial, the
trial will be delayed.
He however does not refute the submission that the case in
the Court below is pending for appearance of some co-accused
persons.
21. A written objection has been filed where it has been
stated that imposition of the condition to deposit the passport is
not illegal and he had voluntarily deposited his passport and when
orders were passed by this Court in the CRLMA to deposit the
passport after his return from the USA, he has complied with the
order without challenging the same. It has also been stated that the
petitioner is involved in a serious offence if the passport is
released the petitioner may not return to the country to face trial
and extradition proceedings to secure his presence is a complex
and protracted process which will delay the trial.
22. Mr. Nayak has also submitted that a Criminal Revision is not
maintainable against a bail order and relies on the decision of the
Gujarat High Court in the case of Kaushikbhai Balubhai Bavarva
vrs. State of Gujarat decided on 28.04.2017 (Special Criminal
Application (Quashing) No. 1790 of 2017), the decision of the
Kerala High Court in the case of T.M. Sajil vrs. Union of India
reported in 2018 SCC Online Ker 3544 and the decision of this
Court in the case of Abhisek Acharya and Others vrs. State of
Odisha (CRLREV No. 331 of 2022, decided on 02.08.2022). In
support of his submission that condition to deposit passport while
granting bail has been done by the Supreme Court so it cannot be
illegal , he also relies on the decision of the Supreme Court in the
case of Prabal Pratap Singh Yadav vrs. Republic of India (SLP
(Criminal) No. 11441-11442 of 2023 dated 10.01.2024).
STATUTORY PROVSIONS
23. Section 438 and 442 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 ( in short BNSS deal with the powers of revision of
the High Court and are extracted below:-
Section 438. Calling for records to exercise powers of
revision.
(1)The High Court or any Sessions Judge may call for and
examine the record of any proceeding before any inferior
Criminal Court situate within its or his local jurisdiction for
the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding, sentence or
order, recorded or passed, and as to the regularity of any
proceedings of such inferior Court, and may, when calling,
for such record, direct that the execution of any sentence or
order be suspended, and if the accused is in confinement that
he be released on his own bond or bail bond pending the
examination of the record.
Explanation.-All Magistrates, whether Executive or Judicial,
and whether exercising original or appellate jurisdiction,
shall be deemed to be inferior to the Sessions Judge for the
purposes of this sub-section and of section 439.
(2)The powers of revision conferred by sub-section (1) shall
not be exercised in relation to any interlocutory order passed
in any appeal, inquiry, trial or other proceeding.(3)If an
application under this section has been made by any person
either to the High Court or to the Sessions Judge, no further
application by the same person shall be entertained by the
other of them.
This is similar to Section 397 of the Old CrPC-
Section 442. High Court's powers of revision.
(1)In the case of any proceeding the record of which has
been called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise
any of the powers conferred on a Court of Appeal by sections
427, 430, 431 and 432 or on a Court of Session by section
344, and, when the Judges composing the Court of revision
are equally divided in opinion, the case shall be disposed of
in the manner provided by section 433.
(2)No order under this section shall be made to the prejudice
of the accused or other person unless he has had an
opportunity of being heard either personally or by advocate
in his own defence.
(3)Nothing in this section shall be deemed to authorise a
High Court to convert a finding of acquittal into one of
conviction
.(4)Where under this Sanhita an appeal lies and no appeal is
brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.(5)Where under this Sanhita an appeal lies but an
application for revision has been made to the High Court by
any person and the High Court is satisfied that such
application was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the interests of
justice so to do, the High Court may treat the application for
revision as a petition of appeal and deal with the same
accordingly.
This is similar to Section 401 of the Old CrPC.
Section- 102 of the Crl.P.C
102. Power of police officer to seize certain property.
(1)Any police officer may seize any property which may be
alleged or suspected to have been stolen, or which may be
found under circumstances which create suspicion of the
commission of any offence.(2)Such police officer, if
subordinate to the officer-in-charge of a police station, shall
forthwith report the seizure to that officer.(3)[ Every police
officer acting under sub-section (1) shall forthwith report the
seizure to the Magistrate having jurisdiction and where the
property seized is such that it cannot be conveniently
transported to the Court, [or where there is difficulty in
securing proper accommodation for the custody of such
property, or where the continue retention of the property in
police custody may not be considered necessary for the
purpose of investigation] [Inserted by Act 45 of 1978, Section
10 (w.e.f. 18-12-1978).], he may give custody thereof to any
person on his executing a bond undertaking to produce the
property before the Court as and when required and to give
effect to the further orders of the Court as to the disposal of
the same.][Provided that where the property seized under
sub-section (1) is subject to speedy and natural decay and if
the person entitled to the possession of such property is
unknown or absent and the value of such property is less
than five hundred rupees, it may forthwith be sold by auction
under the orders of the Superintendent of Police and the
provisions of Sections 457 and 458 shall, as nearly as may be
practicable, apply to the net proceeds of such sales.] [Added
by Act 25 of 2005, Section 13 (w.e.f. 23-6-2006).]
JUDICIAL PRONOUNCEMENTS-
Maintainability of Revision Application
24. In the case of Kaushikbhai Balubhai Bavarva vrs.
State of Gujarat decided on 28.04.2017 (Special Criminal
Application (Quashing) No. 1790 of 2017), it has been held as
follows:
"9. It has been observed by the Supreme Court i n the
case of Usmanbhai Dawoodbhai Memon v State of
Gujarat, (1988) 2 SCC 271, thus : "It cannot be doubted
that the grant or refusal of a bail application is
essentially an interlocutory order. There is no finality to
such an order for an application for bai I can always be
renewed from time to time.... There is no finality
attached to an order of a Designated Court granting or
refusing bail. Such application for bail can always be
renewed from time to time. That being so, the contention
advanced on behalf of the Government that the
impugned orders refusing to grant bail were not
interlocutory and therefore appealable cannot be
ассерted."
10. Relying on the above decision, the Bombay High
Court in the case of Mohan alias Mannu Basantani v.
State of Maharashtra, 1989 Mah. L.R. 1556 ruled as
follows:
"The order granting or refusing bail is an
interlocutory order and in view of sub-section (2) of
section 397 the revisional powers could not be
exercised in respect of such interlocutory order."
11. Similarly, the Bombay High Court in the case of The
State of Maharashtra v. Namdeo Raoji and others,
(1991)1 Mah. L.R. 379, held that the orders of bail are
essentially interlocutory orders and the revision is
barred under Section 397(2) of the Cr.P.C. The above
decisions support the contentions that order granting or
refusing bail is an interlocutory one and the reason is
that the application for gr ant of bail can be renewed
from time to time.
12. Thus, in the first instance, there was a inherent lack
of jurisdiction on the part of the Sessions Court in
entertaining the criminal revision application. If at all
the Sessions Court wanted to cancel the bail, the same
could have been in exercise of power under
Section439(2) of the Cr.P.C. It can be argued that what
difference would it make. If ultimately there is a power,
the Sessions Judge could have exercised the same. It
makes a lot of difference because the considerations
would differ and vary. The rejection of bail in a non
bailable case at the initial stage and the cancellation of
bail already granted, have to be considered and dealt
with on different basis. Very cogent and overwhelming
circumstances are necessary for an order directing the
cancellation of the bail, already granted. It is not the
case of the Department that the Magistrate had no
jurisdiction to grant the bail. If the offence under Section
- 9 of the Central Excise Act would have been
punishable with life imprisonment, then it could
definitely be argued that the Magistrate had no
jurisdiction to grant bail. Generally speaking, the
ground for cancellation of bail, broadly (the illustrative
and not exhaustive) are interference or akin to
interference with the due course of administration of
justice or evasion or attempt to evade the due course of
justice or abuse of the concession granted to the accused
in any manner. However, bail once granted should not
be cancelled in a mechanical manner without
considering whether any supervening circumstances
have rendered it no longer conducive to a fair trial to
allow the accused to retain his freedom by enjoying the
concession of bail during the trial. (See: Dolat Ram And
Others Vs. State of Haryana, (1995) 1 SCC 349).
In the case of T.M. Sajil vrs. Union of India reported in
2018 SCC Online Ker 3544, the court has observed that-
"9. It is settled law that orders passed in bail
applications are in the form of interlocutory orders. It is
for that reason that S.21(4) has been incorporated in
the NIA Act by which an order granting or refusing bail
is treated as an interlocutory order. The position of law
had been well settled in Usmanbhai Dawoodbhai
Memon v. State of Gujarat [(1988) 2 SCC 271],
wherein the Apex Court after referring to V.C. Shukla v.
State [(1980) Supp SCC 92], held at para 24 as under:-
"24. At the conclusion of the hearing on the legal aspect,
Shri Poti, Learned Counsel appearing for the State
Government contended, on instructions, that an order
passed by a Designated Court for grant or refusal of
bail is not an "interlocutory order" within the meaning
of Section 19(1) of the Act and therefore an appeal lies.
We have considerable doubt and difficulty about the
correctness of the proposition. The expression
"interlocutory order" has been used in Section 19(1) in
contradistinction to what is known as final order and
denotes an order of purely interim or temporary nature.
The essential test to distinguish one from the other has
been discussed and formulated in several decisions of
the Judicial Committee of the Privy Council, Federal
Court and this Court. One of the tests generally
accepted by the English Courts and the Federal Court is
to see if the order is decided in one way, it may
terminate the proceedings but if decided in another way,
then the proceedings would continue. In V.C. Shukla v.
State, Fazal Ali, J. in delivering the majority judgment
reviewed the entire case law on the subject and deduced
therefrom the following two principles, namely, (i) that a
final order has to be interpreted in contradistinction to
an interlocutory order; and (ii) that the test for
determining the finality of an order is whether the
judgment or order finally disposed of the rights of the
parties. It was observed that these principles apply to
civil as well as to criminal cases. In criminal
proceedings, the word "judgment" is intended to
indicate the final order in a trial terminating in the
conviction or acquittal of the accused. Applying these
tests, it was held that an order framing a charge against
an accused was not a final order but an interlocutory
order within the meaning of Section 11(1) of the Special
Courts Act, 1979 and therefore not appealable. It cannot
be doubted that the grant or refusal of a bail application
is essentially an interlocutory order. There is no finality
to such an order for an application for bail can always
be renewed from time to time. It is however contended
that the refusal of bail by a Designated Court due to the
non-fulfilment of the conditions laid down in Section
20(8) cannot be treated to be a final order for it affects
the life or liberty of a citizen guaranteed under Article
21. While it is true that a person arraigned on a charge
of having committed an offence punishable under the
Act faces a prospect of prolonged incarceration in view
of the provision contained in Section 20(8) which places
limitations on the power of a Designated Court to grant
bail, but that by itself is not decisive of the question as to
whether an order of this nature is not an interlocutory
order. The court must interpret the words "not being an
interlocutory order" used in Section 19(1) in their
natural sense in furtherance of the object and purpose of
the Act to exclude any interference with the proceedings
before a Designated Court at an intermediate stage.
There is no finality attached to an order of a Designated
Court granting or refusing bail. Such an application for
bail can always be renewed from time to time. That
being so, the contention advanced on behalf of the State
Government that the impugned orders passed by the
Designated Courts refusing to grant bail were not
interlocutory orders and therefore appealable
under Section 19(1) of the Act, cannot be accepted".
In the case of Abhishek Acharya (supra), This case
was deciding a criminal revision challenging the order
rejecting the discharge petition filed by the petitioners -
accused. This Court quoted paragraphs 19 and 20 of the
decision in Amit Kapoor vs Ramesh Chander : (2012) 9
SCC 460 in which duty of the Court at the stage of framing
of charge and jurisdiction of the Court under Section - 397
Cr.P. was stated. This Court thereafter went into the case
records minutely and held that the discharge application had
been rightly rejected. Seizure or Impounding of Passport.
In the case of Suresh Nanda vrs. Central Bureau of
Investigation reported in (2008) 3 SCC 674, the Supreme
Court had observed as follows-
"13. Hence, while the police may have power to seize a
passport under Section 102 Cr.P.C. if it is permissible
within the authority given under Section 102 of Cr.P.C.,
it does not have power to retain or impound the same,
because that can only be done by the passport authority
under Section 10(3) of the Passports Act. Hence, if the
police seizes a passport (which it has power to do
under Section 102 Cr.P.C.), thereafter the police must
send it along with a letter to the passport authority
clearly stating that the seized passport deserves to be
impounded for one of the reasons mentioned in Section
10(3) of the Act. It is thereafter the passport authority to
decide whether to impound the passport or not. Since
impounding of a passport has civil consequences, the
passport authority must give an opportunity of hearing
to the person concerned before impounding his passport.
It is well settled that any order which has civil
consequences must be passed after giving opportunity of
hearing to a party vide State of Orissa Vs. Binapani Dei
[Air 1967 SC 1269].
14. 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 case of Mohammad Hanif Nurani vrs. The State of
Maharashtra & Another (Criminal Application No. 434 of 2024
decided on 05.02.2025 ), the High Court of Judicature at Bombay has
observed as follows:-
"7. I have perused the record placed before me. At the
outset it is seen that passport is not an incriminating
document in the prosecution case and hence seizure of
passport permanently prima facie would stand contrary
to the provisions of the Passports Act, 1967 and more
specifically Sections 10(3)(e) and 10-A thereof. The
condition of permanent seizure of passport by the Court
would indirectly amount to impounding of the passport.
The Passports Act is a special Act and it would override
the provisions of Cr.P.C. for the purpose of impounding /
retention of passport.
8. The present case before me is such that considering the
business profile and antecedents of the Applicant he
would be required to travel abroad at short notice and
therefore if he has to seek release of his passport on every
occasion, the time spent in doing so is clearly detrimental
to his prospects given the existential conditions in Court.
This is not a case where the Applicant has misused the
liberty given to him. Submission on behalf of the DRI that
he is a flight risk therefore cannot be countenanced as
previously Court has released his passport thrice and
Applicant has travelled aboard and diligently complied
with the condition of return. Employing such an onerous
condition in a bail order clearly amounts to indirectly
impounding of the passport in substance. Even under the
provisions of the Passport Act and more specifically
Sections 10-A read with 10 (3)(e), passport can be
retained by the Central Government for four weeks and
thereafter it can only be retained by the order of the
Passport Authority under Section 10(3) of the Passports
Act. The Act of repeatedly depositing the passport after
undertaking every travel itinerary indirectly amounts to
retention of the passport by the Court. As delineated
above, the Passports Act is a special law while Cr.P.C. is
a general law and it is well settled that the special law
prevails over the general law. This principle is expressed
in the maxim generalia specialibus non derogant.
9. In view of the my above observations and decisions of
the Supreme Court in the case of Suresh Nanda (1st
Supra) followed by decisions in the case of M.T. Enrica
Laxie Vs. Doramma³; S. Sathyanarayana Vs. State of
Karnataka; Sir Mohammed Tasnim Vs. State of
Karnataka; Devashish Garg Vs. Directorate of Revenue
Intelligence; Veenita Gupta Vs. State; State of
Maharashtra Vs. Tapas D. Neogy: Avinash Bhosale Vs.
Union of India and Jignesh Prakash Shah (2nd Supra),
the subject condition in question deserves to be interfered
with.
10. Nevertheless to state that if the Prosecuting Agency
/Authority desires to retain the passport in the Court's
custody or with itself due to any reason it shall be open to
the Prosecuting Agency /Authority to seek such relief
under the Passports Act in accordance with law. It is
clarified that this Court has not expressed any opinion on
the merits of the pending case of the Applicant and any
observation made herein shall not influence the pending
case.
11. I am of the opinion that it will be unjust to deny the
Applicant the opportunity to travel abroad for his future
business prospects, if such an opportunity would stand
defeated due to the delay in the present system for seeking
permission of the Court for release of the passport on
every such occasion which is practically not possible due
to the existential delay that occurs. It is seen that
Applicant has deep roots in the Society and no criminal
antecedents whatsoever.
12. Condition No.3 in the bail order dated 21.05.2021
therefore stands deleted. Rest of the order is retained.
Resultantly the impugned order dated 13.12.2022 is
quashed and set aside.
13. It is however directed that whenever the Applicant
travels abroad in future, he shall furnish all details of his
travel itinerary alongwith all documentary material
relating to his purpose of travel, dates and details of
travel and return, tickets, visa etc. with the Respondent
No.2 DRI at least one week in advance before he
undertakes the travel and intimate about his return back
within one week of his return so as to enable the DRI to
apply its mind to the same."
In the case of Prabal Pratap Singh Yadav vrs. Republic of
India (SLP (Criminal) No. 11441-11442 of 2023 dated 10.01.2024)
the court has observed that-
"5. During the course of arguments, the learned counsel
for the appellant handed over a copy of the order passed
by this Court in Criminal Appeal No.2060 of 2023 dated
21.07.2023 in respect of the co-accused of the appellant-
herein, in the selfsame crime number. As per the said
order, the application for bail of the co-accused was
allowed. After a careful consideration of the entire
aspects, we are of the view that the conditions viz., "that
(i) one of such sureties shall be his relative, (ii) that, the
petitioner shall furnish cash security of Rs.18,00,000/-
(eighteen lakhs) in the form of bank deposit and (iii) that
shall also furnish property security free from all
encumbrances and legal impediment worth of
Rs.36,32,900/-" shall be deleted while upholding the
grant of Bail. Ordered accordingly. In the said
circumstances, while maintaining the order granting bail
to the appellant-herein, the condition that he should
furnish surety for a sum of Rs.50,000/- with three sureties
of the like sum is retained. Further conditions can be
imposed by the Trial Court. However, we make it clear
that there shall also be a condition that the appellant
shall surrender his passport before the Trial Court, if not
surrendered earlier. If he does not possess a passport, he
shall file an affidavit in that regard before the Trial
Court."
DISUSSION AND CONCLUSION ..
25. As regards challenge to the maintainability of the Criminal
Revision, there can be no quarrel over the settled principle of law
that grant or refusal of bail ins an interlocutory order. But in this
Criminal Revision, the petitioner has not challenged the bail order
of the learned trial Court. He had prayed for waiver / modification
of one of the bail conditions by filing an application before the
learned Sessions Judge Khurda, at Bhubaneswar , which having
been rejected, he has filed the Criminal Revisions challenging the
order of the learned Sessions Judge, Bhubaneswar . So in my
considered view, the Criminal Revision is maintainable . That
apart in CRL REVISION No. 690 of 2023 , this Court had
entertained the application and directed for release of the passport
of the petitioner for two months .
26. It is also to be noted that this Bench has been given the
assignment of Criminal Appeals and Revisions relating to CBI ,
Vigilance and ED cases as well applications under Section 528 of
BNSS 2023 / Section 482 of the Crl.P.C., 1973 , so even if a
CRLMC had been filed, the same would have been listed before
this Bench. The scope of an application filed under Section 528 of
the BNSS is definitely wider than an application filed under
Section 442 of the BNSS .Considering the assignment of this
Bench , I can also exercise inherent power under Section 528 of
the Cr.P.C, if the same is warranted in the circumstances.,
27. It is the settled principle of law that while exercising
revisional power, the Court has to examine the correctness,
legality or propriety of an order passed by a trial court or a lower
court. The jurisdiction can be exercised when there is a palpable
error in any order, non-compliance of provisions of law, or the
order or decisions is erroneous or exercised arbitrarily
28. The learned Sessions Judge, has rejected the application of
the petitioner in view of the gravity of the offence and as this
Court had directed him to resubmit his passport after his interim
visits abroad . Such order is erroneous and liable for interference
as in CRL REV No.690 of 2023 prayer to release the passport for
two months had been allowed . In the second instance , during
pendency of the CRLMA , as the counsel for the CBI had sought
for an adjournment , prayer for interim release of the passport had
been allowed and the matter had not been decided finally .
29. The impugned order is therefore liable for interference for
interference as being erroneous . vof the said decision is liable for
interference as the conduct of the petitioner during both the times
the passport was released in his favour has not been considered
nor the submission of the petitioner that he would return within 72
hrs., wherever directed by the Court.
30. The passport have the petitioner has not been seized by the
police under Section 102 of the CRl.P.C during investigation. He
was required to surrender his passport as one of the conditions for
granting him bail.
31. I find no illegality in the condition to surrender the passport,
while granting bail to the petitioner, as it was to prevent him from
leaving the country without the knowledge of the trial Court
during the trial and as such condition is being imposed in
numerous cases by various High Courts as well as the Supreme
Court. As he has been permitted to travel abroad on two
occasions, it is apparent that his passport has not been retained
indefinitely and there will not amount to impounding which can
only be done by the passport authorities.
32. It is true that on similar facts , the Bombay High Court has
directed for release of the passport of the petitioner of the accused
who was accused of an offence under Section 135(1) (i) of the
Customs Act while in this case the petitioner has been
chargesheeted for committing offences under Section- 420, 120 B,
34 IPC read with Sections-4, 5, and 6 of the PCMC Act and is a
green card holder.
33. On two occasions, thereafter his passport has been directed
to be released by this Court to enable him to travel to the USA. On
both these occasions, he has complied with the conditions and has
deposited the passport in the trial Court after his return.
34. I find merit in the submissions of the learned Senior
Counsel for the petitioner that on account of the fact that the wife
and daughter of the petitioner are staying in the USA and his wife
is not keeping good health and the petitioner is a green card
holder, for which he has to travel to the USA frequently and
sometimes at short notice, which is not possible if he has to apply
for release of the passport, each time he is required to travel .
35. I also appreciate the apprehension of the learned counsel
for the C.B.I., that the petitioner is a green card holder and if he
does not appear subsequently, trial may be delayed.
36. But the case is not ready for trial and is pending for
appearance of some of the co accused persons, this apprehension
at this stage and in view of the conduct of the petitioner is
unwarranted.
37. So in view of the present status of the trial and the conduct
of the petitioner when the passport was released on two earlier
occasions, I am satisfied that the petitioner is not a "flight risk"
and the passport should be released in his favour by imposing
suitable conditions, till the date is fixed for framing of charge.
38. Once trial starts, he shall deposit his passport in the trial
Court on or before the date is posted for framing of charge and
remain present on the date fixed for framing of charge.
39. Thereafter, if he is required to travel abroad, he may file
fresh application before the learned trial court for release of his
passport along with his itinerary and an undertaking to return as
and when his presence is required by the learned trail court which
will be considered by the learned trial court in accordance with
law, keeping in view his conduct during release of his passport.
40. The impugned order of the learned Sessions Judge, is set
aside and it is directed as follows:
(i) Condition No. ii in bail order dated 19.10.2023 is modified
to the extent that the passport of the petitioner shall be
released to the petitioner immediately to enable him to
proceed abroad.
(ii) After the passport is released, whenever he proposes to
leave the country, the petitioner shall furnish his travel
itinerary along with details of his place and stay and active
contact and whatsapp numbers and email address at least four
days before his departure from India.
(iii) He shall submit an undertaking that he will return without
fail when the case is posted for framing of charge.
(iv) He shall submit the photostat copies of the relevant
pages/entries in his passport within seven days of his return,
before the learned trial Court.
(v) He shall re-deposit the passport in the court of the learned
Special C.J.M, (C.B.l), Bhubaneswar, when S.P.E No.05 of
2014, is posted for framing of charge.
41. The Criminal Revision is allowed. I.A. No. 285 of 2025 is
disposed of.
...........................
(Savitri Ratho, J)
Orissa High Court, Cuttack.
The 15th May, 2025.
Puspanjali Mohapatra, Personal Assistant.
Signed by: PUSPANJALI MOHAPATRA
