Full Judgment Text
2023 INSC 645
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos.1601–1602 of 2023
Chennupati Kranthi Kumar … Appellant
versus
The State of Andhra Pradesh & Ors. … Respondents
J U D G M E N T
ABHAY S. OKA, J.
1. Though the dispute involved in these appeals concerns
the return of the passport of the appellant, it is an outcome of
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a matrimonial dispute between the appellant and 4
respondent who is his wife. With a view to understand the
controversy, a brief reference to factual aspects will be
necessary.
FACTUAL ASPECTS
2. The appellant is accused no.1 in a prosecution for
offences punishable under Sections 498A, 403 and 406 of
the Indian Penal Code, 1860 (for short, ‘IPC’) and Sections 3
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.07.25
18:14:22 IST
Reason:
and 4 of the Dowry Prohibition Act, 1961 (for short, ‘the 1961
Act’). During the course of the investigation into the said
Criminal Appeal Nos.16011602 of 2023 Page 1 of 10
offences, the Police issued a notice under Section 91 of the
Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) calling
upon the appellant to produce his passport. Accordingly, the
appellant submitted his passport to the concerned police
station, which in turn, handed over the original passport to
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the 3 respondent – Regional Passport Office at Hyderabad.
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There was a correspondence exchanged between the 3
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respondent and the appellant. The 3 respondent issued a
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letter dated 11 February 2021 informing the appellant to get
permission from the competent Court for the release of his
passport.
3. The appellant is working in a company in USA. He
came to India on a leave to perform the first death
anniversary rituals of his father. While he was in India, a
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complaint was filed by the 4 respondent–wife against the
appellant and other family members for the offences
punishable under Sections 498A, 403 and 406 of IPC and
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Sections 3 and 4 of the 1961 Act. Prior to that, on 19
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January 2021, the 3 respondent issued a notice to the
appellant, in which it was recorded that the Police authorities
have forwarded his original passport to him. In the same
notice, it was alleged that the appellant was in possession of
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the passport of 4 respondent. The appellant was called upon
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to return the passport to the 4 respondent.
Criminal Appeal Nos.16011602 of 2023 Page 2 of 10
4. The appellant made an application to the Court of the
learned II Additional Chief Metropolitan Magistrate–cum–
Mahila Magistrate, Vijayawada for issuing a direction to the
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3 respondent to return the passport. The appellant pleaded
that he has a fundamental right to travel abroad conferred by
Article 21 of the Constitution of India. He pointed out in the
application that he needs to go back to USA to attend his job.
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The application was opposed by the 4 respondent on various
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grounds. On 14 June 2022, the application was dismissed
by the learned II Additional Chief Metropolitan Magistrate
cumMahila Magistrate. Being aggrieved by the said order,
the appellant filed a petition under Section 482 of Cr. P.C
before the High Court. By the impugned judgment and order,
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the High Court of Andhra Pradesh directed the 3 respondent
to return the passport of the appellant to facilitate his travel
abroad, subject to the following conditions:
a. The appellant shall deposit a sum of ₹ 10 lakhs by
way of a Fixed Deposit Receipt in the name of the
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4 respondent; and
b. The appellant shall submit the original passports
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of the 4 respondent and his minor son.
The appellant was aggrieved by the condition of producing the
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passports of his son (who is a citizen of USA) and his wife – 4
respondent. The appellant applied for the modification of the
said order insofar as it directed him to return the passports of
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his wife and minor son. The contention of the appellant was
that the passport of his son was lost in July 2021 and that
the appellant has complied with the necessary procedure to
get a new passport issued. He also contended that the
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appellant was not in possession of the passport of the 4
respondent. He, however, agreed to comply with the
condition for depositing the sum of ₹ 10 lakhs by way of Fixed
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Deposit Receipt in the name of the 4 respondent–wife. Even
the said application was rejected by the High Court. Both the
aforesaid orders have been challenged in these appeals.
SUBMISSIONS
5. The learned counsel appearing for the appellant relied
upon a decision of this Court in the case of Suresh Nanda v.
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Central Bureau of Investigation by submitting that there
is no power vesting in the Police to impound a passport. He
further submitted that the power to impound passport vests
only in the Passport Authority under the Passports Act, 1967
(for short, ‘the PP Act’). He submitted that in fact, the
appellant’s passport was never impounded and therefore, it
must be returned to him unconditionally.
6. The learned Additional Solicitor General appearing for
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the 3 respondent – Regional Passport Office submitted that a
duplicate passport cannot be issued under the provisions of
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the PP Act and Rules framed thereunder. However, 4
1 (2008) 3 SCC 674
Criminal Appeal Nos.16011602 of 2023 Page 4 of 10
respondent can apply for the reissue of passport provided she
establishes that her passport has been lost. On a query made
by the Court, he accepted that there was no order of
impounding the appellant’s passport made in accordance with
Section 10 (3) of the PP Act.
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7. The learned counsel appearing for the 4 respondent –
wife submitted that the stand taken by the appellant that the
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passport of the 4 respondent–wife was never with him is
completely false. Therefore, the direction issued by the High
Court was perfectly justified. He urged that the rights of the
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4 respondent cannot be allowed to be defeated. He also
pointed out the conduct of the appellant which according to
him was objectionable. His submission is that the appellant
has indulged in the suppression of facts.
OUR VIEW
A relevant decision of this Court on the issue involved is
8.
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in the case of Suresh Nanda . In the said decision, it was
held that the power under Section 104 of Cr.P.C. cannot be
invoked to impound a passport. The reason is that the
provisions of the PP Act which deal with the specific subject of
impounding passports shall prevail over Section 104 of
Cr.P.C. Moreover, it was held that under Section 102 (1) of
Cr.P.C., the Police have the power to seize the passport but
there is no power to impound the same. It was held that even
if the power of seizure of a passport is exercised under Section
102, the Police cannot withhold the said document and the
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same must be forwarded to the Passport Authority. It is,
thereafter, for the Passport Authority to decide whether the
passport needs to be impounded.
9. It is an accepted position that the Police took custody of
the appellant’s passport in the exercise of powers under
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Section 91 of Cr.P.C. and handed over the same to the 3
respondent. SubSection (1) of Section 91 of Cr.P.C. reads
thus:
“91. Summons to produce document or
other thing:
(1) Whenever any Court or any officer in
charge of a police station considers that the
production of any document or other thing
is necessary or desirable for the purposes of
any investigation, inquiry, trial or other
proceeding under this Code by or before
such Court or officer, such Court may issue
a summons, or such officer a written order,
to the person in whose possession or power
such document or thing is believed to be,
requiring him to attend and produce it, or to
produce it, at the time and place stated in
the summons or order.
(2) .. .. .. .. .. .. .. .. .. .. .. .. ..
(3) .. .. .. .. .. .. .. .. .. .. .. .. .. ”
We fail to understand why the passport of the appellant was
required for the purpose of the pending criminal case.
Therefore, the exercise of calling upon the appellant to submit
his passport was not legal. Thereafter, the passport was
never impounded in exercise of power under Section 10 of the
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PP Act. There is nothing on record to show that the passport
was seized under Section 102 of Cr.P.C. As there was neither
a seizure of the passport nor impounding thereof, the
appellant was entitled to return of the passport.
10. Paragraph 13 of the impugned judgment and order
reads thus:
“13. Therefore, in the peculiar facts and
circumstances of the case and keeping in
view the interest of both the parties, this
Court deems it appropriate to set aside the
Order under Revision and direct the release
of Passport of the petitioner to facilitate his
travel to abroad subject to the condition of
the petitioner depositing a sum of
Rs.10,00,000/ by way of F.D.R., in favour
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of the 4 respondent/ de facto complainant
along with the Original Passports of the 4th
respondent/ de facto complainant and her
son before the learned II Additional Chief
Metropolitan MagistratecumMahila
Magistrate, Vijayawada, within a period of
four (4) weeks from the date of receipt of a
copy of this Order. Further, the petitioner
shall file an UndertakingAffidavit that he
would return to India within a period of six
months and cooperate for expeditious
disposal of the above said C.C. In the event,
the petitioner fails to return back, the
F.D.R., shall stand forfeited in favour of the
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4 respondent/ de facto complainant. ”
As there was neither a seizure nor impounding of the
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passport, it was unauthorisedly retained by the 3
respondent. In fact, the High Court directed the return of the
passport subject to a deposit of a sum of ₹ 10 lakhs by way of
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Fixed Deposit Receipt in the name of the 4 respondent. As
the High Court permitted the appellant to travel abroad, this
condition was imposed to ensure that the appellant comes
back as per his undertaking to attend the trial. But, the
direction to the appellant to return the passports of the
appellant’s son and wife was not supported by law. Therefore,
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the High Court ought to have directed the 3 respondent to
return the passport. We may note here that the appellant is
not aggrieved by the direction to make a fixed deposit of ₹ 10
lakhs.
11. The direction to return the passports of his wife and son
as a condition for the release of the appellant’s passport was
completely illegal. As regards the passport of the son, it is
taken care of as the appellant has followed the prescribed
procedure in USA regarding lost passports. The condition of
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returning the passport of the 4 respondent could not have
been imposed at all as the act of the Passport Officer of
retaining the appellant’s passport was completely illegal.
Therefore, the said respondent can make an application in a
prescribed form to the competent regional officer for the
reissue of the passport. If the validity of the passport has
expired and the period provided for renewal thereof has
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expired, she can apply for a fresh passport. If the 4
respondent wants some documents from the appellant only
for the purposes of filing an application for the reissue of the
passport or for grant of a fresh passport, the appellant shall
cooperate by doing the needful.
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12. Accordingly, the appeals succeed and we pass the
following order:
a. The condition imposed on the appellant by the
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impugned order of returning the passports of the 4
respondent and of the son is set aside;
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b. It will be open for the 4 respondent to apply to the
concerned Regional Passport Office in prescribed
format for the reissue of her passport or for grant of
a fresh passport. The concerned Regional Passport
Office shall process the said application on the
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footing that her passport has been lost. The 4
respondent shall not be called upon to produce the
proof of loss of passport. Filing a report to the
Police about the loss of the passport shall be
sufficient. The application shall be processed as
expeditiously as possible;
c. The appellant shall render all possible cooperation
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to the 4 respondent for getting the passport by
providing documents, if any, required as per the
Passports Rules, 1980;
d. Rest of the order stands confirmed; and
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e. The appeals are partly allowed on the above terms.
There will be no order as to costs.
………………………..J.
(Abhay S. Oka)
………………………..J.
(Rajesh Bindal)
New Delhi;
July 25, 2023.
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