IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 8217 of 2009(O) ------------------------- OS.152/2005 of MUNSIFF COURT, VADAKARA .................... PETITIONER(S): --------------- JOSE PETER, S/O.PETER, PARAKKACHERI HOUSE, VADAPURAM, P.O.MAMPAD (VIA), MALAPPURAM DISTRICT. BY ADV. SRI.SUNIL KUMAR A.G SRI.R.SUDHEESH KUMAR RESPONDENT(S): --------------- C.K.VIJAYA KUMAR, S/O.NARAYANAN KURUP, PALOLI HOUSE, CHERUVANNUR AMSOM, PAMPIRIKUNNU DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT. ADV. SRI.B.RAMACHANDRAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON 18/06/2009 DELIVERED THE FOLLOWING: WPC.8217/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE E.A.NO.431/2008, DATED 29.10.2008. EXT.P2: COPY OF THE ORDER DATED 1.11.2008 IN E.A.NO.431/2008 EXT.P3: COPY OF THE NOTICE DATED 13.11.2008 E.A.NO.431/2008 IN E.P.NO.253/2008. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF NOTICE IN E.AP.NO.253/2008 IN O.S.NO.152/2005 DATED 22.7.2008. EXT.R1(B): COPY OF THE PROCESS SURVEYOR'S REPORT DATED 25.7.2008. EXT.R1(C): COPY OF PETITION DATED 23.6.2008 SUBMITTED BEFORE PASSPORT OFFICER, MALAPURAM. EXT.R1(D): COPY OF LETTER DATED 10.8.2008 FROM PASSPORT OFFICER, MALAPURAM. EXT.R1(E): COPY OF THE PETITION DATED 18.9.2008 SUBMITTED BEFORE THE PASSPORT OFFICER, MALAPURAM. EXT.R1(F): COPY OF REPLY DATED 30.9.2008 FROM PASSPORT OFFICER, MALAPURAM /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.8217 OF 2009 (O) ----------------------------------- Dated this the 18th day of June, 2009 J U D G M E N T The question arising for consideration is whether the Court can pass an order to impound the passport of a judgment debtor in an execution proceedings on the apprehension raised by the decree holder that he is likely to leave the country, and thus, the decree holder would be deprived of realising the fruits of the decree. 2. The petitioner is the judgment debtor in E.P.No.253/2008 in O.S.No.152/2005 on the file of the Vadakara Munsiff Court. Suit was one for money which was decreed ex parte. The execution petition filed before the Munsiff Court, Vadakara was transferred to Munsiff court, Mancheri. The decree holder moved an application before that court under Section 151 of the CPC for an order to the Passport officer, Malappuram to impound the passport of the judgment debtor alleging that the judgment debtor who was in a gulf country has just now come back to his house, but, avoiding the notice and trying to leave the country. It is the WPC.8217/09 2 further case of the decree holder that a long pending warrant issued by a Magistrate Court against the judgment debtor is pending for execution and that an attempt made by the decree holder to impound the passport of the judgment debtor through the Passport officer had been turned down directing him to get an order from the appropriate court for doing so. Ext.P1 is the copy of that petition. The learned Munsiff, after hearing the counsel for the decree holder, passed Ext.P2 order directing the Passport officer, Malappuram to impound the passport of the judgment debtor. The decree holder was also directed to issue notice to the judgment debtor emergently and meet the expenses for service of the above order through special messenger. Legality, propriety and correctness of that order is impeached by the judgment debtor invoking the supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The impugned order evidently was passed by the learned Munsiff without referring to the Passport Act, whereunder, there is no provision enabling any court to pass an order directing the WPC.8217/09 3 Passport officer to impound the passport of a party in a proceeding. Section 10 of the Passport Act spells out under what circumstances the passport authority may vary, impound or revoke the passport and travel documents, subject to the provision of sub-sections (1) of Section 6 or any notification under Section 19 of the above Act. Sub-section (3) of Section 10 specifies under clauses (a) to (h) in what cases the passport authority may impound or cause to be impounded or revoke the passport or travel document. But none of the provisions covered by clauses (a) to (h) under Sub-section (3) of Section 10 confers any authority to the court to direct or order the passport authority to impound or revoke the passport or travel document of a party to a proceedings. The court is empowered under Sub-section (7) of Section 10, on convicting the holder of the passport or travel document of any offence under the Act or the rules made thereunder to revoke the passport or travel document of such convict. Sub-section (8) of Section 10 authorises the appellate court or the High Court to pass an order of revocation as provided under Sub-section (7) while exercising its powers of appeal or revision as the case may be. But it has to be taken note that WPC.8217/09 4 the conviction of the offender holding a passport or travel document must be in relation to any offence under the Passport Act or the Rules made thereunder. The passport authority is empowered to impound or revoke the passport of a person if the holder of the passport had been convicted by a court in any offence involving moral turpitude, provided, the sentence imposed is imprisonment for not less than two years. The conferment of such a power on the passport authority is covered by Sub-section 3 (d) of Section 10 of the Passport Act. Similarly, such impounding or revocation can also be made by the passport authority where it is brought to his notice, and he is satisfied, that a warrant or summons for appearance or warrant for the arrest of the holder of the passport or travel document has been issued by the court under any law which is in force or that an order has been passed by the court prohibiting the departure of the passport holder from India. He is empowered to do so under Sub-section (3) (h) of Section 10 of the Act. So, what is seen from the provisions of the Passport Act is that except in a case where a holder of the passport or travel document is convicted of an offence under the Passport Act or Rules made thereunder, the court WPC.8217/09 5 convicting him, and the appellate court or the High court while exercising its powers on revocation in respect of such a proceeding, a court cannot order for revocation of the passport or travel document. An order by the court to impound the passport of a holder on whatever grounds that be is not provided by the Passport Act. In Suresh Nanda v. C.B.I. (AIR 2008 SC 1414) the powers of the police to seize passport under Section 102 of the Cr.P.C. is recognised, but, it has been pointed out that in exercise of such authority the police does not have a power to impound the passport. The apex court has further made it clear that even the court cannot impound the passport. In the above decision, it has been held thus: “While the police may have the power to seize a passport under Section 102 (1) Cr.P.C., it does not have the power to impound the same. Impounding of a passport can only be done by a passport authority under Section 10 (3) of the Passport Act, 1967. Even the court cannot impound a passport. Though Section 104 Cr.P.C states that the court may, if it thinks fit, impound any document or thing produced before it, this provision will only enable the court to impound any document or thing other than a passport. This is because impounding passport is provided WPC.8217/09 6 for in Section 10 (3) of the Passports Act. The Passport Act is a special law while the Cr.P.C is a general law. It is well settled that the special law prevails over the general law.” 4. The impugned order passed by the learned Munsiff, no doubt, has no sanction of law and it is patently erroneous and unsustainable. Strangely enough, the learned Munsiff has passed such an order even without issuing notice to the judgment debtor in the execution proceeding ignoring that any order for impounding or revoking the passport of a holder without affording him an opportunity to show cause is an infringement of his personal liberty insulated and protected under Article 21 of the Constitution of India (See Msr. Maneka Gandhi v. Union of India and another ((1978) 1 SCC 248). At the time of hearing, the learned counsel for the petitioner submitted that pursuant to Ext.P2 order passed by the learned Munsiff, his passport had been impounded by the passport authority. Since Ext.P2 order has been shown to be perverse, not sanctioned by law, and accordingly liable to be set aside, all proceedings taken pursuant thereof shall also be deemed as done without sanction of law. Ext.P2 order is WPC.8217/09 7 set aside. If any impounding of the passport of the judgment debtor had been done by the Passport Authority on the basis of Ext.P2 order, appropriate orders in the light of this judgment without delay shall be passed by that authority on production of a copy of this judgment before him. I make it clear that this judgment will not stand or limit the empowerment of the passport authority to take appropriate proceedings under the Passport Act if cause thereof to its satisfaction is shown for proceeding as such against the holder of the passport, the judgment debtor. The operation of the judgment shall be confined to the impounding of the passport of the judgment debtor, if any, made on the basis of Ext.P2 order. Writ petition is disposed as indicated above. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009