Chattisgarh High Court
Rajesh Mishra vs State Of Chhattisgarh on 16 January, 2025
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2025:CGHC:2702
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 884 of 2023
Rajesh Mishra S/o Bramheshwar Mishra Aged About 43 Years R/o Golden
Homes, Kachna Mova, Police Station Pandri, District- Raipur, Chhattisgarh,
Permanent Address- Road No. 6, House No. 30, Sindhgoda, Police Station
Sindhgoda, District- Jamshedpur, Jharkhand.
... Applicant
versus
State Of Chhattisgarh Through The Station House Officer, Police Station New
Rajendra Nagar Raipur, District- Raipur, Chhattisgarh.
... Respondent
(Cause title is taken from the CIS)
For Applicant : Mr. Virendra Verma, Advocate
For State-Respondent : Ms. Binu Sharma, Panel Lawyer
Hon’ble Shri Justice Arvind Kumar Verma
Order on Board
16/01/2025
1. This criminal revision has been preferred by the applicant under
Sections 397 & 401 of the Code of Criminal Procedure, 1973 being
aggrieved by the order dated 30.05.2023 passed in Criminal Case
No.02/2019 by the learned Sessions Judge/Special Judge
(Chhattisgarh Nikshepako ke Hito ka Sanrakshan Adhiniyam, 2005)
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(Annexure A/1), whereby the trial Court has rejected the application
filed by the applicant under Section 451 of CrPC.
2. Brief facts of this case are that the present revisioner is accused in the
Criminal Case No.02/2019 which is pending before the learned trial
Court and facing trial for the offences under Section 420 of I.P.C. and
various Sections of Special Act i.e. Chhattisgarh Nikshepako ke Hito ka
Sanrankshan Adhiniyam, 2005. The applicant has enlarged on bail, but
his passport bearing No.K 5488506 issued by the Republic of India has
been seized by the police. Therefore, the applicant has filed an
application under Section 451 of Cr.P.C. seeking the interim custody of
the passport, but the same has been rejected by the impugned order
which is already filed as Annexure A/1. Hence, this revision.
3. Learned counsel for the applicant contended that the impugned order
is contrary to the facts and law, which is not sustainable in the eyes of
law. He further contended that the power and jurisdiction to impound
the passport of any individual has to be exercised under the Passport
Act, 1967. He specifically referred to sub-section (3)(e) of Section 10 of
the Act which reads as under:
(3) The passport authority may impound or cause to be impounded or
revoke a passport or travel document –
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(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:
He further contended the trial Court has not appreciated that the
applicant has enlarged on bail and he has not misused the same.
Moreover, the applicant has a business for which he has to go abroad
for which he needed the passport. It is therefore prayed that this
Hon’ble Court may kindly be pleased to set aside the impugned order
dated 30.05.2023 (Annexure A/1) releasing the passport from the
police custody, in the interest of justice.
4. Learned State Counsel opposes the submission made by learned
counsel for the applicant.
5. I have heard learned counsel for the parties, perused the impugned
order and other material available on record with utmost
circumspection.
6. Considering the facts of the case, submission made by learned counsel
for the applicant and from perusal of the record, it is evident that after
taking into consideration, the learned trial Court has rejected the
application under Section 451 of CrPC filed by applicant on the ground
that according to the material on record, Sure Mart and Sure Wealth’s
Directors- Rajesh Mishra and Deendayal Soni and Associate- Prafull
Chaudhary were found to have defrauded the applicant Surendra
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Preetwani and 6776 other customers of about Rs.90 crore by cheating
and deceiving them by luring them with the promise of giving franchise
to customers and getting 0 to 02% dividend on investing in Sure Mart.
The matter was investigated. A case was registered against the
accused on the Investors’ complaint. Along with this, there is a charge
of cheating of about Rs.90 crores. There are facts on record that
Accused-Rajesh Mishra invested some amount of the money in his
bank account, some money in the firm’s account, some money in his
family’s account and spent some money on foreign travel. In this way, it
is shown that accused Rajesh Mishra has committed the crime of
financial irregularity of crores of rupees. The accused is trying to get his
passport on surrender to do business abroad, and if this is given, the
possibility of the accused absconding cannot be ruled out and it does
not seem appropriate to provide passport on surrender to the
applicant/accused Rajesh Mishra.
7. On perusal of the records, it reveals that the charge-sheet has been
filed against the applicant under Sections 420/34, 409, 120-B of IPC,
1860 and Section 10 of the Protection of Depositors Interests Act, 2005
and Section 3/4 of the Prize Chits and Money Circulation Schemes
(Banning) Act, 1978 and seized the passport of the applicant. The
applicant has filed the application before the trial Court under Section
451 of CrPC for interim custody of the passport, but the same has been
rejected by the trial Court by impugned order Annexure A/1.
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8. Section 10(3) of the Passport Act, 1967 provides as under :
“(3) The passport authority may impound or cause to be impounded or
revoke a passport or travel document,-
(a) if the passport authority is satisfied that the holder
of the passport or travel document is in wrongful
possession thereof;
(b) If the passport or travel document was obtained by
the suppression of material information or on the basis
of wrong information provided by the holder of the
passport or travel document or any other person on his
behalf:Provided that if the holder of such passport
obtains another passport, the passport authority shall
also impound or cause to be impounded or revoke
such other passport.
(c) if the passport authority deems it necessary so to do
in the interests of the sovereignty and integrity of India,
the security of India, friendly relations of India with any
foreign country, or in the interests of the general public;
(d) if the holder of the passport or travel document has,
at any time after the issue of the passport or travel
document, been convicted by a court in India for any
6offence involving moral turpitude and sentenced in
respect thereof to imprisonment for not less than two
years;
(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;
(f) if any of the conditions of the passport or travel
document has been contravened;
(g) if the holder of the passport or travel document has
failed to comply with a notice under sub-section (1)
requiring him to deliver up the same;
(h) if it is brought to the notice of the passport authority
that a warrant or summons for the appearance, or a
warrant for the arrest, of the holder of the passport or
travel document has been issued by a court under any
law for the time being in force or if an order prohibiting
the departure from India of the holder of the passport or
other travel document has been made by any such
court and the passport authority is satisfied that a
warrant or summons has been so issued or an order
has been so made.”
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9. Counsel for the applicant contended that in accordance with Section
10(3) of the Passport Act, even the Court cannot impound the passport.
The Passport Act is a special law while CrPC is a general law.
10. As per law laid down by the Hon’ble Supreme Court in the matter of
Nanda Vs. C.B.I reported in AIR 2008 SUPREME COURT 1414, even
the Court cannot impound the such passport, it only done by the
Passport Authority under Section 10(3) of the Act, 1967.
11. Hence, while the police may have power to seize a passport under
Section 102 Cr.P.C. if it is permissible within the authority given under
Section 102 of Cr.P.C., it does not have power to retain or impound the
same, because that can only be done by the passport authority under
Section 10(3) of the Passports Act. Hence, if the police seizes a
passport (which it has power to do under Section 102 Cr.P.C.,
thereafter the police must send it along with a letter to the passport
authority clearly stating that the seized passport deserves to be
impounded for one of the reasons mentioned in Section 10(3) of the
Act. It is thereafter, the passport authority to decide whether to impound
the passport or not. Since impounding of a passport has civil
consequences, the passport authority must give an opportunity of
hearing to the person concerned before impounding his passport. It is
well settled that any order which has civil consequences must be
passed after giving opportunity of hearing to a party.
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12. In the present case, neither the passport authority passed any order of
impounding nor was any opportunity of hearing given to the applicant
by the passport authority for impounding the document. It was only the
Police authority which has retained possession of the passport.
13. In the opinion of this Court, this was clearly illegal. Under Section 10-A
of the Act retention by the Central Government can only be for four
weeks. Thereafter it can only be retained by an order of the Passport
authority under Section 10(3).
14. In my opinion, even the Court cannot impound 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, 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. The Passports Act is a special law
while the CrPC 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 Generalia specialibus non derogant. Hence, impounding of a
passport cannot be done by the Court under Section 104 Cr.P.C.
though it can impound any other document or thing.
15. For the aforesaid reasons, I set aside the impugned order dated
30.05.2023 (Annexure A/1) passed by the trial Court and direct the
respondent to hand over the passport to the applicant. However, it shall
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be open to the respondent to approach the Passport Authorities under
Section 10 or the authorities under Section 10-A of the Act for
impounding the passport of the applicant in accordance with law.
16. However, make it clear that I am not expressing any opinion on the
merits of the case and is not deciding whether the passport can be
impounded as a condition for grant of bail.
17. The criminal revision stands disposed of accordingly.
Sd/-
Digitally
VASANT signed
by
(Arvind Kumar Verma)
KUMAR VASANT
KUMAR
Judge
Vasant
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