Suneel Kumar Sharma vs State of Himachal Pradesh

Kuldip Singh, Judge

This petition has been filed u/s 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing order dated 3.1.2012 passed by learned Judicial Magistrate 1st Class, Bilaspur in Case No. 323/3 of 2010 rejecting the prayer of the petitioner to release his passport. The prayer has been made for a direction for returning of passport No. F-2187357 to the petitioner. The facts in brief are that the petitioner is an accused in FIR No. 226 of 2010 dated 27.8.2010 under Sections 498A, 504, 506, 34 IPC registered at Police Station Sadar, Bilaspur. The case has been registered at the instance of Pooja Devi wife of the petitioner. On completion of investigation, the challan has been submitted and the case is pending before learned Judicial Magistrate 1st Class, Bilaspur. It has been stated that while conducting investigation in the above case, the police took into possession passport bearing No. F-2187357 of the petitioner on the plea that the petitioner may leave the country during the pendency of the investigation of the case or the ensuing trial.

The petitioner had filed an application before the learned Judicial Magistrate u/s 457 Cr.P.C. The learned Judicial Magistrate on 3.1.2012 has dismissed the application for releasing the passport. It has been stated that the learned Judicial Magistrate has erred in rejecting the application of the petitioner for return of passport.

It has been stated that the police had no authority to impound the passport of the petitioner. The passport of the petitioner can in no way be termed as case property. It has been stated that even the Court has no power to retain or impound the passport of any person, which can only be done by the Passport Authority under the Passport Act, 1967 (for short ''Act'').

There is violation of Article 21 of the Constitution. The passport is earnestly required by the petitioner for the purpose of making advancement in career inasmuch as many prospective employers require that their employee should have passport. The learned counsel for the petitioner has relied Suresh Nanda Vs. C.B.I., The submission has been made for returning of passport No. F-2187357 to the petitioner.

The reply has been filed. It has been stated that the petitioner was arrested on 1.9.2010, he applied for bail. The learned Court at the time of granting of the bail put the condition that the applicant will not tamper with the prosecution witnesses and not to leave the jurisdiction of the State of H.P. till the conclusion of the trial. On the same day, the petitioner was associated for interrogation and the passport of the petitioner was taken into possession to ensure his presence in the investigation and during the trial.

It has been stated that if the passport of the petitioner is returned to the petitioner then there are chances of the petitioner to go abroad. The petitioner will take undue advantage of the passport. The petitioner had visited U.K. four times and there are chances that he will go abroad which will hamper the trial of the case.

Heard. There is no dispute that the case has been registered at Police Station Sadar, Bilaspur at the instance of wife of the petitioner in which the petitioner and others are accused. On completion of investigation, the challan has been submitted and now the case is pending in the Court. The petitioner was released on bail on 2.9.2010 with the condition not to tamper with the prosecution witnesses and not to leave the jurisdiction of the State of H.P. till the conclusion of the trial.

The trial has not been concluded and the conditions imposed by the Court at the time of granting bail to the petitioner on 2.9.2010 are still in force. It appears from the reply that in view of the condition imposed by the Court for granting bail to the petitioner, the investigating agency on the same day took the passport of the petitioner into possession to ensure his presence not only during investigation but during trial also. The petitioner has not challenged the order dated 2.9.2010 granting bail.

In Suresh Nanda (supra) the Supreme Court has held that Passport Authority under the Act has power to impound the passport. The Supreme Court has also held that even the court cannot impound a passport. However, the Supreme Court has held as follows:-

We, however, make it clear that we are not expressing any opinion on the merits of the case and are not deciding whether the passport can be impounded as a condition for grant of bail.

In the reply, it has been stated that passport of the petitioner has been taken into possession when the petitioner was released on bail on the condition that he will not leave the jurisdiction of Himachal Pradesh. It has been stated that petitioner had gone to U.K. four times, in these circumstances, possibility cannot be ruled out that the petitioner will again go out which will cause delay in the trial. The investigating agency has taken into possession the passport in pursuance of the bail order. In Suresh Nanda it has also been held that the Supreme Court has not decided whether the passport can be impounded as a condition for grant of bail. The learned Judicial Magistrate in the impugned order has observed in case the passport of the accused is released, he may go outside the country and the proceedings of the case will be affected. The investigating agency taking into consideration the fact that petitioner had gone four times to U.K. in the past, there is possibility of the petitioner again going out side the country and therefore, has taken into possession the passport when the Judicial Magistrate while granting bail to the petitioner has ordered that he will not leave the jurisdiction of Himachal Pradesh. In terms of the bail condition, the passport of the petitioner has been taken into possession. There is no merit in the petition, hence dismissed.