IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 Crl.MC.No. 3391 of 2009() ------------------------- MP.2591/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, ERNAKULAM. CRIME NO.454/2009 OF CHERANELLOOR POLICE STATION. .................... PETITIONER/ACCUSED NO.2 ----------------------------------------- SINDHU SREEKUMAR SREEDHARAN NAIR, AGED 31 YEARS, W/O.SREEKUMAR, VELIYATH HOUSE, SOUTH CHITTOOR, COCHIN-27. BY ADV. MR.S.SUBHASH CHAND SMT.M.P.MARY RESPONDENTS/STATE & PUBLIC PROSECUTOR --------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHERANELLOOR POLICE STATION, CHERANELLOOR, ERNAKULAM DISTRICT. 2. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR.K.J. MUHAMMED ANSAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3391 of 2009 -------------------------- ORDER Petitioner is the second accused in Crime No. 454/2009 of Cheranelloor Police Station, registered for the offences under Sections 419, 420, 465 and 468 read with Section 34 of Indian Penal Code and Section 12 of Passports Act. First accused is the husband of the petitioner. As per order in B.A.No.4047/2009, this Court has already granted anticipatory bail to the petitioner on conditions. After registration of the crime, Investigating Officer had conducted a search and seized the passport of the petitioner and produced it before the Magistrate. Petitioner filed M.P.No. 2591/2009 under Section 451 of Code of Criminal Procedure before Judicial First Class Magistrate's Court-II, Ernakulam for interim custody of the passport. By Annexure-2 order, learned Magistrate dismissed the petition for the reason that there is no intention or necessity for the petitioner at present to go out of India and also as investigation is in 3391/09 2 progress, petitioner is not entitled to get interim custody of the passport. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-2 order and to grant interim custody of the passport seized by the police. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner submitted that passport was seized by the police on search and it was produced before the Magistrate and retention of the passport would amount to impounding of the passport as declared by the Apex Court in Suresh Nanda v. C.B.I. (AIR 2008 SC 1414) and a passport can be impounded only by the authorities as provided under Passports Act and so, petitioner is entitled to get custody of the passport. 5. Learned Public Prosecutor did not seriously oppose the prayer submitting that the passport was seized on search and was produced before the Magistrate and if passport is released, petitioner would flea from justice. 3391/09 3 6. For trial of the case, passport of the petitioner is not necessary. Prosecution has no case that even for investigation of the case the passport is necessary, as no request was made before the court to grant custody of the passport after it was produced. In such circumstances, when the passport is not necessary either for the investigation or for trial, learned Magistrate should have released the passport to the petitioner, as otherwise, it would amount to illegal retention of the passport, which would amount to impounding of the passport, which is not permissible under law as declared by the Apex Court in Suresh Nanda's case (supra). Petition is disposed. Judicial First Class Magistrate-II, Ernakulam is directed to grant interim custody of the passport to the petitioner on condition that before leaving India, petitioner has to seek permission of the Magistrate. 10th November, 2009 (M.Sasidharan Nambiar, Judge) tkv