Crl. Misc. No.M-23652 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Decided on: December 14, 2010. Crl. Misc. No.M-23652 of 2009. Gurdev Singh .. Petitioner VERSUS Union Territory, Chandigarh and another. . Respondents *** CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI PRESENT Mr.V.K.Sachdeva, Advocate, for the petitioner. Mr.D.D.Sharma, Advocate, for Union Territory, Chandigarh, with SI Balwant Singh Mr.H.S.Bhullar, Advocate, for the respondent. *** M.M.S. BEDI, J. The petitioner, through the instant petition, under Section 482 Cr.P.C., seeks to set aside the order dated 06.06.2009, Annexure P-2, passed by the Court of Mrs.Raj Rahul Garg, the then Additional Sessions Judge, Chandigarh, to the extent of its imposing a restriction that the Passport of the petitioner will be retained by Enquiry Officer SI Gurjit Kaur, posted in Crime against Women Cell . . . 1 Crl. Misc. No.M-23652 of 2009 and that the same should not be released to the petitioner without the permission of the Court. The order dated 06.06.2009, was extended vide another order dated 03.07.2009, while sending the matter to the Permanent Lok Adalat, to settle the matrimonial dispute of the petitioner with his wife. Brief facts of the case, relevant for the adjudication of this petition, are that the petitioner is a citizen of United States of America (USA) holding an American Passport. He is permanently settled in America for the last 26 years and is Non Resident Indian (NRI) with a social security number allotted to him as 567-75-9997. He has been issued a Passport No.038098198 valid uptil 03.04.2012, issued by Los Angles Passport Agency, USA. The petitioner was married to respondent No.4, Kulwinder Kaur daughter of Tara Singh, resident of Chandigarh, on 17.02.1999. Respondent No.4 joined the petitioner in USA in the year 2003 and had been residing peacefully with the petitioner in the matrimonial home in USA. A male child was born to the couple in USA in 2004, but the said issue could not survive. Thereafter, respondent No.4, again conceived but the child had to be aborted with the mutual consent of the petitioner and respondent No.4 on account of some complication of the genes of both husband and wife. After having consulted best medical experts in the USA, the petitioner and respondent No.4 came to India on 09.01.2009 and stayed in the parental house of petitioner at village Mehrampur Tupria, Tehsil Kharar, District Mohali. The couple visited various . . . 2 Crl. Misc. No.M-23652 of 2009 doctors in Chandigarh on different occasions. The relationship between the couple had been cordial but in the second week of May 2009, Tara Singh father of petitioner's wife, respondent No.3, came to the house of petitioner in his village and misbehaved and abused the petitioner and his mother. He again visited the village of petitioner on 17.05.2009 and asked the petitioner to give him Rs.50 lacs, otherwise he would take his daughter along with him. He forcibly had taken the wife of the petitioner despite the sincere request and resistance by the petitioner and other villagers and required the petitioner to pay a sum of Rs.50 lacs within two days, at Chandigarh. The house of the petitioner was raided by a Sub Inspector on the allegation that a complaint had been received against him in the Crime against Women Cell, Sector 17, Chandigarh and he was required to appear before the said Cell. The petitioner along with Sarpanch and other Panches of the village and many villagers appeared in Sector 17, Chandigarh, before the Crime against Women Cell, and the statement of the petitioner was recorded. The petitioner claims that respondent No.3, Tara Singh, his father-in-law, along with some Advocates claiming to be human rights activists were present in the Police Station on two days and the petitioner was asked to pay a sum of Rs.2 lac US Dollars, otherwise FIR will be registered. During the course of enquiry, while recording the statements of all the villagers, on 21.05.2009, the police had illegally impounded the Passport issued to the petitioner by USA authorities . . . 3 Crl. Misc. No.M-23652 of 2009 and asked the petitioner to meet his father-in-law respondent No.3, to settle the amount to be paid in 24 hours or to face the arrest. The respectable of the village met the Deputy Superintendent of Police, Crime against Women Cell, Sector 17, Chandigarh, explaining that the complaint filed against the petitioner was false and was an attempt to pressurize the petitioner to compromise and pay the demanded amount. On 27th May, 2009, Sarpanch and other villagers of the village again met the Deputy Superintendent of Police. The police categorically told the petitioner to pay Rs.1,15,00,000/- to respondent No.3, otherwise, he would be sent behind bars. Faced with this situation, the petitioner was compelled to file an application for pre-arrest bail in the Court of Sessions Judge, Chandigarh. The case was taken up in the Lok Adalat on 06.06.2009 in the presence of Chairman of the Lok Adalat, Hon'ble Mr.Justice J.S.Khehar. When wife of the petitioner demanded the return of her Laptop, Camera and Car, as per the directions of the Chairman, the Laptop and Camera were returned. The petitioner produced the documents regarding the Car having been purchased in his name. The documents relating to the Car were also deposited in the Court. The Court of Mrs.Raj Rahul Garg, Additional Sessions Judge, Chandigarh, granted interim anticipatory bail to the petitioner vide order dated 06.06.2009, which reads as follow: - “This case was taken up in Lok Adalat before Hon'ble Judge Justice J.S.Khehar. During the . . . 4 Crl. Misc. No.M-23652 of 2009 course of settling of the matter on the asking of Hon'ble Judge, Gurdev Singh brought articles mentioned in the statement recorded today in the Court and the same have been received by Kulwinder Kaur, complainant. Statements of Gurdev Singh and Kulwinder Kaur recorded separately. As Kulwinder Kaur stated that her dowry articles and Car still remains with Gurdev Singh which are yet to be recovered and further settlement is also to take place between the parties, therefore, petitioners are allowed interim anticipatory bail in the interest of justice on their furnishing personal bonds in the sum of Rs.50,000/- each with one surety in the like amount each to the satisfaction of arresting officer, subject to the condition that they shall join the investigation, shall not leave the country without prior permission of the Court and shall not tamper with the evidence or witnesses. SW1 Kulbir Kaur stated that the passport of petitioner Gurdev Singh is already with Enquiry Officer SI Gurjit Kaur from whom she has confirmed this fact. Passport of the petitioner shall not be released to him without permission of the Court. This file be put up before Ld. District & Sessions Judge, Chandigarh on 08.06.2009, as I shall be on vacations. Both the counsel for the parties and parties are directed to appear before the Ld. Sessions Judge, Chandigarh, on that day.” The matter when again came up before the same Judge on 03.07.2009, the Court passed the following order: - . . . 5 Crl. Misc. No.M-23652 of 2009 “At this stage, learned PP contended that one gold set, one gold ring and six gold bangles totaling 20 tolas besides other articles may be got delivered to the complainant from the petitioner. In the earlier Lok Adalat, a talk of compromise was there. Now, for settlement, this case is ordered to be put up before Permanent Lok Adalat, Chandigarh. Father of the complainant stated that he shall be bringing the complainant before the Permanent Lok Adalat on the date fixed. The other side has also agreed for the appearance of the petitioner for compromise. As such, case is adjourned to 06.07.2009, for settlement before Permanent Lok Adalat. File be sent there well in time. Till then order regarding interim anticipatory bail dated 06.06.2009, is ordered to be extended.” Pursuant to the directions dated 03.07.2009, the police provided complaint with annexures made by respondent No.4 and a copy of the said complaint dated 19.05.2009, has been attached with the petition as Annexure P-4. In the said complaint, the allegations have been levelled against the petitioner that he had maltreated her. The validity of the allegations in the complaint are not relevant for the adjudication of this petition as the petitioner is merely challenging the act of impounding of his USA Passport by the police. The matter was taken up by the Lok Adalat on 23.07.2009. On 06.08.2009, when the petitioner was unwell, his counsel informed the Lok Adalat about his illness and sought one . . . 6 Crl. Misc. No.M-23652 of 2009 week's time to appear before the Lok Adalat but the Lok Adalat sent the case back to the Court of Additional Sessions Judge, Chandigarh directing him to appear on 10.08.2009. Being American citizen, the petitioner was required to go back to USA before the expiry of USA Passport of 6 months of his stay in India but could not go as his Passport has been illegally detained by the police. The petitioner made a representation to the Senior Superintendent of Police, Chandigarh and to US Embassy to get his USA Passport released, which was in illegal custody of the Enquiry Officer, Crime against Women Cell, Sector 17, Chandigarh and requested to cancel the complaint filed by respondent No.3, but no action was taken by the police on the representation Annexure P-5, which is stated to have not been decided till date though a prayer has been made for protection of life and liberty and for release of the American Passport. In reply filed by respondent Nos.3 & 4, the respondents have taken up the plea that respondent No.4, worked with her husband continuously and earned lacs of US Dollars which used to be taken by him and his family members leaving no money for her to spend for personal needs. The petitioner had allegedly sold his business and paid its price to his relations residing in USA. She was not permitted to acquire any property in her name. The allegation of demand of money by respondent No.3, has been denied, but it has been admitted that an attempt was made by respondent No.4, that her earnings should be returned to her and . . . 7 Crl. Misc. No.M-23652 of 2009 that such talks had taken place while reconciliation proceedings were going on. Respondent Nos.1 & 2, have filed a short reply through Inspector Gurdarshan Kaur Bhullar, Incharge, Crime against Women Cell, admitting that the Passport of petitioner was taken into custody during reconciliation proceedings so that he may not manage to escape out of country during pendency of the reconciliation proceedings. The petitioner had applied for anticipatory bail and the same was taken up in Lok Adalat and the petitioner along with other co-accused was released on interim bail, in the interest of justice on furnishing personal bonds in the sum of Rs.50,000/- with one surety of like amount subject to the satisfaction of the arresting officer. Reliance has been placed on the order dated 06.06.2009, wherein the Additional Sessions Judge, Chandigarh, had observed regarding retention of Passport by the police. The Incharge of Crime against Women Cell, Sector 17, Chandigarh, has pleaded that if the passport of the petitioner is released, he may abscond and the prosecution agency will not be in a position to prosecute him as per law. Learned counsel for the petitioner has submitted that the action of Police impounding the passport of the petitioner and the order dated 06.06.2009, imparting a legal sanction that passport shall not be released to the petitioner without the permission of the Court, is illegal, without jurisdiction and contrary to . . . 8 Crl. Misc. No.M-23652 of 2009 the provisions of Section 10 (3) (e) of the Passports Act, 1967. Reliance has been placed on Suresh Nanda Vs. Central Bureau of Investigation, AIR 2008 SC 1414, wherein it has been held relying upon Satwant Singh Sawhney Versus D. Ramarathnam, Assistant Passport Officer, 1967, INDLAW SC 519, and Mrs.Meneka Gandhi Vs. Union of India and another, 1978 INDLAW SC 212, that police may have power to seize a passport under Section 102(1) Cr.P.C., 1973, but it does not have any power to impound the same. The impounding of passport can only be done by Passport Authority under Section 10 (3) of Passports Act, 1967. The relevant portion of Satwant Singh Sawhney's case (supra) is reproduced as under: - “15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104, Code of Criminal Procedure, 1973, 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, 1967. The Passports Act, 1967, is a special law while the Code of Criminal Procedure, 1973, 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 . . . 9 Crl. Misc. No.M-23652 of 2009 “Generalia specialibus non derogant”. Hence, impounding of a passport cannot be done by the Court under Section 104, Code of Criminal Procedure, 1973, though it can impound any other document or thing. 16. For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10A of the Act for impounding the passport of the appellant in accordance with law. 17. 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.” I have considered the facts and circumstances of this case. In the present case the petitioner is admittedly a resident of USA and his passport has not been issued by the passport authorities of India. The Passport Authority in India can exercise powers under Section 10 (3) (e) of the Passports Act, 1967, which reads as follow: - “(3) The Passport Authority may impound or cause to be impound or revoke a passport or travel . . . 10 Crl. Misc. No.M-23652 of 2009 document - (e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a Criminal Court in India.” In the present case, the passport has been issued to the petitioner by the competent authority in USA and the passport held by the petitioner can not even be impounded by the Passport Authority of India. In Mrs.Meneka Gandhi's case (supra) and in Satwant Singh Sawhney's case (supra), it has been held that personal liberty within the meaning of Section 21 of the Constitution of India,includes within its ambit the right to go abroad and normally no person can be deprived of this right except according to procedure prescribed by law. It is not the case of the State or the respondents that the passport of the petitioner has been impounded in the exercise of any powers under Section 102 or 104 or 165 of the Code of Criminal Procedure. Every administrative action should have sanction of law. In the present case, the passport of the petitioner had been taken on 21.05.2009, during the enquiry before the Women Cell on the basis of a complaint dated 19.05.2009. The said action had been approved by judicial orders dated 06.06.2009, and 23.07.2009, in an anticipatory bail application. It is an admitted fact that when the orders were passed by the Court, no FIR had been registered against the petitioner. Since the Passport was retained during . . . 11 Crl. Misc. No.M-23652 of 2009 pendency of enquiry in a complaint before the Crime against Women Cell and the passport is a document issued by the competent authority of USA, the liberty of the petitioner cannot be curtailed without any sanction of law. The retention of original document of petitioner by police pursuant to the directions during reconciliation proceedings before the Lok Adalat exercising the jurisdiction under the Legal Services Authority Act, is not permissible. Orders dated 06.06.2009 and 23.07.2009, permitting the retention of that passport by a Court in an application for pre-arrest bail when no FIR has been registered is also illegal and without any authority of law. It is directed that the passport of the petitioner will be released by respondent Nos.1 & 2 within a period of 7 days. It is made clear that no opinion is expressed on merits of the case and that this Court has not decided or held whether the passport can be impounded as a condition for the grant of bail. This order will not prejudice the rights of the respondents to avail other legal remedies to curtail the right of the petitioner to travel beyond the jurisdiction of the Court. Disposed of. (M.M.S.BEDI) JUDGE December 14, 2010. rka . . . 12