M. Ismayil vs The Inspector of Police Airport Police Station, Trichy, Crime No. 396 of 2011

Honourable Mr. Justice P.R. Shivakumar

Mrs. S. Prabha, learned Government Advocate(Crl. Side) has taken notice on behalf of the respondent/Police. The Criminal Revision Case can

be disposed of on a short point of interpretation of law and hence, this Court deems it appropriate to dispose of the Criminal Revision Case at the

stage of admission itself, after hearing both sides and upon perusing the impugned order of the learned Judicial Magistrate and the connected

papers produced by the petitioner in the form of typed-set of papers. The learned Government Advocate(Crl. Side) also concedes that the

Criminal Revision Case can be disposed of in the manner pointed out above.

The petitioner is the sole accused in Cr.No.396 of 2011, registered on the file of the Airport Police Station, Trichy, for alleged offences u/s 419

and 420 IPC. Besides arresting the petitioner/accused in the said case, the respondent/Inspector of Police, Airport Police Station, Trichy also

seized his passport bearing Passport Number H 8841154 and produced it in the court of the learned Judicial Magistrate No. VI, Trichy. The

petitioner/accused was released on bail subsequently. Thereafter, he filed a petition u/s 451 Cr.P.C., praying for the return of his passport. The

learned Judicial Magistrate, accepting the contention of the respondent that the petitioner/accused would flee from justice if the passport was

released, dismissed the said petition, namely, Cr.M.P.No.1970 of 2011 by the impugned order dated 14.11.2011. It is surprising to note that the

learned Judicial Magistrate, even after narrating the relevant passage in the judgment of the Honourable Supreme Court in Suresh Nanda.vs.

Central Bureau of Investigation reported in (2008) 1 MLJ(Crl)1195(SC)=(2008) 2 SCC (Crl) 121, chose to dismiss the said petition.

In the above cited case, Honourable Supreme Court has stated that the Court does not have the power u/s 104 of Cr.P.C to impound the

passport, that the police who seized the passport using its authority given u/s 102 Cr.P.C also cannot impound the same and that if the passport is

to be impounded, it must be sent to the Passport Authority with a request for impounding the same. The learned Judicial Magistrate observed that

the said observation made by the Supreme Court in the said judgment would not be applicable to the facts of this case. this Court wonders how

the learned Judicial Magistrate could have distinguished the facts of the case from the facts of the case dealt with by the Supreme Court. Without

elaborating as to how the case of the petitioner is distinguishable from the case dealt with by the Supreme Court, the learned Judicial Magistrate

seems to have simply executed his pre-conceived decision to negative the claim made by the petitioner.

It is pertinent to note that the Honourable Supreme Court in clear and unambiguous terms has held that the authority to impound a passport is

the Passport Authority and the police, who seizes it during the course of investigation and the court in which the same is produced do not have the

power to impound and that if the passport is to be impounded, it should be sent to the Passport Authority along with a request to impound the

passport. Any order passed by the Passport Authority can be challenged by the aggrieved party. In the case that was decided by the Supreme

Court, the ultimate direction issued was that the police should send the passport along with a request to the Passport Authority for impounding it

and the passport-holder could approach the passport Authority to get the same.

In this case, no violation of the provisions of the Passport Act has been alleged. Under such circumstances, had the learned Judicial Magistrate

directed his Office or the Police to send the passport to the Passport Office where from the petitioner can obtain it by making necessary

application, the order of the learned Judicial Magistrate would have been somewhat sustainable. But the learned Judicial Magistrate has gone to the

extent of simply dismissing the petition on the premise that if the petitioner was given the passport, he would flee from justice. The said order of the

learned Judicial Magistrate cannot withstand the scrutiny of this Court. It is totally unsustainable, besides being against the view expressed by the

Honourable Supreme Court.

Hence, this Court comes to the conclusion that the Criminal Revision Case deserves to be allowed, with the result that the impugned order of

the learned Judicial Magistrate No. VI, Trichy, dated 14.11.2011 made in Cr.M.P.No.1970 of 2011 in Cr.No.396 of 2011 shall be set aside and

the said Cr.M.P shall stand allowed, directing return of the passport of the petitioner bearing Passport Number H 8841154. By way of

clarification, it is made clear that this Order shall not come in the way of the Police separately applying to the Passport Authority for impounding

the passport under the provisions of the Passport Act. The said liberty given to the police is not a licence either to the Police or to the Court to

withhold the passport and refuse to hand it over to the petitioner in compliance with this Order. Consequently, connected Miscellaneous Petition is

closed.