1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.03.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.1684 of 2011 Ramdoss ... Petitioner Vs. 1.State thro' the Sub Inspector of Police, All Women Police Station, Tallakulam, Madurai crime No.23 of 2010 ...1st Respondent/Complainant 2.Mrs.Puvana @ Reena ...2nd Respondent/Defacto Complainant PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to direct the Judicial Magistrate No.II, Madurai to return the passport of the petitioner/Accused which was surrendered by him in crime No.23 of 2010 as per the order of this Court in Crl.O.p.No.14441 of 2010. For Petitioner :Mr.T.K.Gopalan For Respondents :Mrs.S.Devasena Govt. Advocate (Crl.side) for R1 : Mr.N.Anantha Padmanaban for R2 O R D E R This petition has been filed by the petitioner seeking for a direction to the learned Judicial Magistrate No.2, Madurai to return the passport of the petitioner/accused which was surrendered by him in crime No.23 of 2010 as per the order of this Court in Crl.O.p.No.14441 of 2010. 2.Heard Mr.T.K.Gopalan, learned counsel for the petitioner and Mrs.S.Devasena, learned Government Advocate (criminal side) appearing for the 1st respondent and Mr.N.Ananthapadmanaban, learned counsel appearing for the 2nd respondent. 3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner is working as a Chief Marine Engineer to earn for his monthly maintenance and he has to go abroad as offers come to him and got himself appointed as Chier Marine Engineer to go to foreign countries. He would further submit in his argument that this Court on an earlier occasion has granted bail in Crl.O.P.No.14441 of 2010 and it was allowed on 30.11.2010 with certain conditions. 4.He would also submit that one of the conditions was that he has to surrender his passport before the learned Judicial Magistrate No.2, Madurai and he can on permission get the return of his passport and whenever he wants to go abroad. He would further submit that he filed a petition for relaxation of the condition in Crl.O.P.No.409 of 2011 and https://hcservices.ecourts.gov.in/hcservices/ 2 the same was dismissed with an observation that there was no documentary evidence like letter of offer submitted for showing any condition that passport is necessary for the purpose of his employment as a Marine Engineer. However, the petitioner is now seeking for the return of the passport that the impounding of the Passport as one of the conditions of bail cannot be imposed in the wake of the judgment of the Hon'ble Apex Court reported in 2008(3) SCC 674 in between Suresh Nanda Vs. Central Bureau of Investigation. He would also submit in his argument that according to the said judgment, except the passport authorities, the Court or any other Institution cannot retain or impound the passport of any person. He would therefore request the Court that the direction issued by this Court, which was not ordered to be modified has to be struck down in view of the judgment of the Hon'ble Apex Court. He would further submit in his argument that the petitioner is always ready to obey the remaining conditions as imposed against him. Therefore, he would request the Court to order the petition filed by the petitioner as prayed for. 5.The learned Government Advocate (criminal side) appearing for the 1st respondent would submit in his argument that the petitioner has surrendered his passport as per one of the conditions and it is kept in the custody of the learned Judicial Magistrate No.II, Madurai. The investigation is offing and the said passport may be kept with the Court and it would be in the safe custody and the petitioner would be available if the condition is continued and the passport is held by the learned Judicial Magistrate No.2, Madurai. Therefore, he would request the Court to pass suitable orders. 6.The learned counsel appearing for the 2nd respondent/defacto complainant would submit in his argument that the petitioner cannot ask for the passport as of right, since the bail as granted to the petitioner was on such condition imposed against him. He would also submit that the said condition was proposed by the petitioner himself and it was also mentioned by this Court that the petitioner through his counsel submitted that the petitioner will surrender his passport before the Court and if he wants to go abroad, he will leave India only after obtaining permission from the Court and on hearing the said submission only, this Court had passed an order directing the petitioner to surrender his passport before the said Court and therefore the said condition was imposed. 7.He would also submit in his argument that the employment of the petitioner does not require the passport and therefore, the petitioner with the help of this Court wants to go abroad and thereby to defeat the case pending before the Courts in India. He would therefore request that the petition has to be dismissed as not maintainable as no relief is grantable to the petitioner. 8.I have given anxious consideration to the arguments advanced on either side. 9.The petitioner is the accused in crime No.23 of 2010 on the file of the 1st respondent police and the investigation is offing. In the meantime, the petitioner was arrested and was released on bail with certain conditions and one of the conditions would be that the petitioner shall surrender his passport and to obtain permission from the Court for going out of India. The petitioner has filed a petition in Crl.O.P.(MD) https://hcservices.ecourts.gov.in/hcservices/ 3 No.409 of 2011 for relaxation of the said condition of this Court and this Court had come to a conclusion of dismissing the said application by holding that no documentary evidence has been produced or any letter of offer has been submitted in the alleged employment offer given to the petitioner. 10.In such circumstances, this Court did not consider the power of the Court to retain the passport of any person by the Court which is equivalent to impound. According to the submission of the learned counsel for the petitioner, the Hon'ble Apex Court had laid down a dictum as reported in 2008(3) SCC 674 in between Suresh Nanda Vs. Central Bureau of Investigation that the passport cannot be impounded by any Court even under section 104 Cr.P.C. The relevant passage would run thus: "In our opinion, even the court imp9und 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 of a "passport" is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while 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 Edn., P.133). This principle is expressed in the maxim generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the court Section 104 Cr.P.C. though it can impound any other document or thing." On a careful perusal of the said judgment, we could understand that the passport can be impounded only by the passports authority under Section 10(3) of the Passports Act. The said provisions of Section 10(3) of Passports Act shall over ride the provisions of Section 104 Cr.P.C. Therefore, the Court cannot impound the passport. 11.As far as this case is concerned, merely receiving the passport as a condition would amount to impounding of passport and therefore, I could see that the condition imposed against the petitioner, who surrendered the passport for keeping it in the custody of the learned Judicial Magistrate No.2, Madurai itself is not legally sustainable. When the condition is not legally sustainable, such a condition cannot be imposed for the impounding of the passport by the way of surrendering the passport. Therefore, the said condition imposed by this Court as condition No.1 for granting bail to the petitioner is ordered to be deleted. The other conditions, if not relaxed or modified so far, shall continue. 12.With the aforesaid observations, this criminal original petition is ordered. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar (C.S) https://hcservices.ecourts.gov.in/hcservices/ 4 To 1. The Sub Inspector of Police, All Women Police Station, Tallakulam, Madurai. 2. The Judicial Magistrate No.2, Madurai. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. + 1 cc to Mr.N.Ananthapadmanaban, Advocate, SR No.11319 Crl.O.P.(MD)No.1684 of 2011 02.03.2011 arul RJ/18.3.11 (IT) 4p/5c https://hcservices.ecourts.gov.in/hcservices/