(2012) 269 KLR 249
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.S.SATHEESACHANDRAN, J.
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Cr.M.C.No.2853 of 2010
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CC.486/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT II,PERINTHALMANNA .. (CRIME NO.159/2009 OF MELATTUR POLICE STATION)
Dated this the 26th day of July, 2012
Head Note:-
Indian Penal Code, 1860 - Sections 498-A and 406 r/w 34 - Passports Act, 1967 - Section 10 - Impound Passport - Cancellation of Bail - The order of the magistrate cancelling the bail cannot be impeached on the ground that the condition regarding production of passport was imposed by the Sessions Judge in order granting pre-arrest bail, where his enlargement on regular bail was subject to the condition imposed over production of his passport or filing of an affidavit as to not having possession of such document.
Code of Criminal Procedure, 1973 - Section 104 - Passports Act, 1967 - Section 10 - Power of the court to impound a document or thing - Impound Passport - Cancellation of Bail - Whether the magistrate in ordering cancellation of the bail could have issued a direction to address the Passport Officer 'to impound the passport' of the petitioner?
Held:- Satisfaction by the passport authority that a warrant or summons for appearance or a warrant for arrest of the holder of the passport or travel document, or prohibitory order against him from leaving the country has been issued by the court, is required, for passing orders of revocation/impounding of the passport or travel document. When that be so, there cannot be any direction from the magistrate to address the Passport Authority 'to impound the passport of the petitioner' but only of addressing that authority informing the pendency of criminal proceedings against the accused, passport holder, for the offences alleged to have been committed by him and also issue of non-bailable warrant against him on cancellation of his bail, to initiate proceedings for impounding/suspending/revoking of his passport. The direction under Annexure A7 order of the magistrate to address the Passport Officer 'to impound the passport' of the first accused shall stand modified as one for addressing that authority as indicated above, but not as an order/direction to impound the passport since such an order/direction cannot be passed under the provisions of the Passports Act.
Petitioner is the 1st accused in a case pending on the file of the Judicial Magistrate of the First Class-II, Perinthalmanna. He is being prosecuted with some others for offences punishable under Sections 498-A and 406 read with Section 34 of the Indian Penal Code, on a crime registered over a complaint filed by his wife.
2. On registration of the crime, petitioner and the other accused moved for pre-arrest bail under Section 438 of the Code before the Sessions Judge, Manjeri. Their application was allowed vide Annexure A2 order with directions to move for regular bail before the magistrate within the time fixed, imposing some other conditions also, which included a direction to the accused to surrender their passports before the magistrate, and if not in possession of passports, then, to file affidavit stating that fact. Petitioner appeared before the magistrate within the time fixed and moved for regular bail with an affidavit stating that his passport had been lost. He was enlarged on regular bail. Subsequent to his release on bail, while the case was pending, he left the country, making use of his passport, and, then, the de facto complainant, his wife, moved an application for cancellation of the bail granted to him. Petitioner resisted that application contending that after bail was granted, he placed an advertisement in a newspaper over the missing of his passport and in response to that a person who had obtained custody of the document handed it over to him. He advanced another case also, that pending the criminal proceedings the wife had moved an application claiming maintenance and, pursuant thereto, on his agreement to provide maintenance, with her consent he left the country using his passport. The learned Magistrate found no merit in the case pleaded by the petitioner for flouting the conditions on which he had been enlarged on bail and, thereupon, Annexure A7 order was passed cancelling his bail with direction to address the Passport Officer 'to impound his passport'. That order is challenged in the above petition invoking the inherent powers of this court under Section 482 of the Code.
3. Learned counsel for the petitioner assailed Annexure A7 order on two grounds: Petitioner was granted bail by the Sessions Judge, and the condition directing him to produce the passport was imposed while allowing his application for pre-arrest bail. Though he had been directed to move for regular bail within the time fixed before the magistrate, so far as violation of the condition relating to the production of passport, even if that be so, it is contended, only the Sessions Judge has empowerment to order for cancellation of his bail. The other ground canvassed to assail Annexure A7 order is that the direction issued by the magistrate to address the Passport Officer 'to impound his passport' on cancellation of his bail is violative of the provisions covered by the Passports Act, 1967, for short, 'the Act'. The Passport Officer is the competent authority to pass an order for impounding of passport or travel document, and before taking a decision thereof, the person proceeded against must be heard, is the submission of the counsel. In other words, a pre-decisional hearing by the Passport Officer before passing any order for impounding of the passport being the mandate of the Act, the direction issued by the magistrate in Annexure A7 order is not only incorrect, but, it is improper and unsustainable, is the submission of the counsel.
4. True, the Sessions Judge, while granting pre-arrest bail has directed the petitioner to produce his passport before the magistrate, or to file an affidavit if not in possession of such a document, while disposing the application for anticipatory bail with some directions. When pre-arrest bail was granted with specific direction to move for regular bail before the magistrate within the time fixed and that has been complied with and the petitioner was enlarged on bail by the magistrate acting upon his affidavit that he had lost his passport and hence it could not be produced, it is no longer open to the petitioner to contend that he has not violated the condition on which bail was granted by the magistrate. Annexure A3 is the copy of the affidavit filed by him before the magistrate stating that the had lost his passport. Petitioner affirmed in that affidavit that he will not leave the jurisdiction of the court till the trial is over. He also assured that he will appear before the court without default. After giving such an undertaking before the court canvassing a case that he has lost his passport, admittedly, he left the country using his passport. Whether he had effected any publication in newspaper over the missing of the passport, how he obtained his passport later, and, even assuming that he left the country after entering into some settlement with his wife, such circumstances would not absolve him in the flouting of the undertaking given to the court under Annexure A3 affidavit, which had been acted upon by the court to enlarge him on bail. There is no merit in the challenge canvassed by the petitioner that the condition imposed for production of his passport was by the Sessions Judge, and not by the magistrate. Regular bail was granted to him, and it could have been granted also, only in compliance with the direction given by the Sessions Judge accepting and acting upon the undertaking given in Annexure A3 affidavit. He was relieved from production of the passport, accepting his case that it had been lost. When the condition on which bail was granted has been flouted, the magistrate is fully competent to cancel his bail. The order of the magistrate cancelling the bail cannot be impeached on the ground that the condition regarding production of passport was imposed by the Sessions Judge in Annexure A2 order granting pre-arrest bail, where his enlargement on regular bail was subject to the condition imposed over production of his passport or filing of an affidavit as to not having possession of such document.
5. The next question to be considered is whether the magistrate in ordering cancellation of the bail could have issued a direction to address the Passport Officer 'to impound the passport' of the petitioner. Has the magistrate power to issue such a direction requires to be examined with reference to the provisions covered by the Act. Section 10 of that Act deals with variation, impounding and revocation of passport and travel document. An order impounding a passport or travel document can be passed only by the Passport Authority. The court, however, enjoins authority under sub-section (7) of Section 10 of the Act to pass an order revoking the passport or travel document where the holder of such passport or travel document is convicted of an offence under the Act or the Rules. Sub Sections (7) and (8) of Section 10 of the Act read thus:
(7) A court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document:
Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void.
(8) An order of revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.
What is conferred under the above provisions is only revoking of the passport or travel document, and that too where the holder of such document is convicted of an offence under the Act or the Rules. No power has been conferred on the court to impound a passport or travel document, nor even to direct the passport authority to do so under any of the sub-sections covered by Section 10 of the Act. Power to revoke a passport or travel document, that too, when an offence thereto is done under the Act or Rules, that alone, conferred on the court under the aforesaid provisions is totally different from the authority to impound the passport or travel document. 'Revocation' only means annulling, rescinding or withdrawing (See Pradip Kumar Das v. State of West Bengal (AIR 1974 SC 2151) whereas 'impound' means to keep in custody of the law. The operation of two are distinct and different. That is also further made clear by sub section (9) of Section 10 of the Act, which reads thus:
(9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, surrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation.
An order of revocation is different from an order impounding a passport or travel document.
6. However, where the holder of a passport is proceeded in respect of an offence alleged to have been committed and it is pending before a criminal court, the passport authority can pass orders for impounding or revoking his passport or travel document. Such a situation is covered by sub-section 3(e) of Section 10 of the Act, which reads thus:
(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,- ................................ (e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are ending before a criminal court in India.
Similarly, if a warrant or summons for the appearance or warrant for the arrest of the holder of a passport or travel document has been issued by a court or if there is an order by the court prohibiting his departure from India the passport authority, if such orders are brought to its notice can pass appropriate orders for impounding or revoking the passport or travel document of the person so proceeded. Section 10(3)(h) of the Act empowers the Passport Authority to take action in the circumstances indicated above, which reads thus:
(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,- .................................
(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.
Satisfaction by the passport authority that a warrant or summons for appearance or a warrant for arrest of the holder of the passport or travel document, or prohibitory order against him from leaving the country has been issued by the court, is required, for passing orders of revocation/impounding of the passport or travel document. When that be so, there cannot be any direction from the magistrate to address the Passport Authority 'to impound the passport of the petitioner' but only of addressing that authority informing the pendency of criminal proceedings against the accused, passport holder, for the offences alleged to have been committed by him and also issue of non-bailable warrant against him on cancellation of his bail, to initiate proceedings for impounding/suspending/revoking of his passport. The direction under Annexure A7 order of the magistrate to address the Passport Officer 'to impound the passport' of the first accused shall stand modified as one for addressing that authority as indicated above, but not as an order/direction to impound the passport since such an order/direction cannot be passed under the provisions of the Passports Act.
7. The Apex Court in Suresh Nanda v. CBI {2008 SC 1440} has held that the power of the court to impound a document or thing under Section 104 of the Code of Criminal Procedure will not enable it to impound a passport since such impounding is provided and can be done, only under Section 10(3) of the Passports Act. When that be so, even a direction cannot be given to the passport authority to impound passport or travel document, but only to intimate him of the circumstances covered by Section 10 (3)(e) or (h) of the Act, for taking appropriate steps for impounding/suspending/ revoking of the passport or travel document of the holder as against whom proceedings are pending in relation to any offence committed, or warrant or summons for appearance or arrest, or prohibitory orders leaving the country, as the case may be, has been issued or ordered by the court.
8. Addressing the passport authority, in the circumstances, will be only for initiating steps for impounding/suspending/revoking of the passport as per the Rules, and not as an order for impounding the passport, since that authority has to pass appropriate orders on its satisfaction for passing such orders as per the provisions of the Act and the Rules.
Subject to the observations made above, with direction to the learned Magistrate, to address the Passport Authority as indicated above, the petition is dismissed.
Sd/- (S.S.SATHEESACHANDRAN) JUDGE
sk/- //true copy//
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