# Jyotinder Singh Randhawa v. State of U.P

- **Citation:** (2019) 3 ILRA 43
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-24
- **Case number:** U/S 482/378/407 No. 5778 of 2019
- **Bench:** Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jyotinder-singh-randhawa-v-state-of-u-p-44776
- **Pages:** 6

## Headnote

Law-Criminal
Procedure
Code, 1973 Sections 10(3) and 10(4) of
the Passports Act, 1967- Impounding of
passport. The Passports Act, 1967 is a
complete code read with the Passport
Rules, 1980. Held: Merely on the basis of
anticipation mentioned in the report of
the
Prosecuting
Officer
presumption
cannot be drawn at the time of passing
the order for retaining the passport -The
court below is bound to record its
satisfaction for the same- The trial court
cannot retain the passport on the
request of the Prosecuting Officer. (Para
12,14,16,17 & 18)

Application for release of passport of the
applicant
rejected-Report
of
Prosecuting
Officer that in case the passport is returned to
the applicant he may leave the country. No
written request was made by the Forest
44 INDIAN LAW REPORTS ALLAHABAD SERIES
Official for retaining the passport before the
court below - Forest Officer has not placed
any report before the court below to impound
the passport of the accused-applicant - No
application filed by the Forest Officials before
the Passport Authority under the provisions of
The Passports Act, 1967 to impound the
passport during the trial.

Application u/s 482 Cr.P.C. allowed (E-3)

List of cases cited :-

## Text

3 All. Jyotinder Singh Randhawa Vs. State of U.P.
43
right in holding that the veracity of the
allegations is a question of evidence. The
question is not about veracity of the
allegations, but whether the respondents are
answerable at all before the criminal court.
There is no indication in that regard in the
order passed by the learned Magistrate.

27. To form a prima facie
satisfaction as to whether there are
grounds for proceedings on a complaint
filed under Section 190(1)(a) Cr.P.C.
against the accused, the Magistrate is
required to consider the averments of the
complaint to examine prima facie truth
and inherent improbabilities apparent in
the allegations made in the complaint. If
the Magistrate comes to the conclusion
that the allegations are improbable
without considering the defence of the
accused, learned Magistrate should not
proceed with the complaint.

28. In the present case, the learned
Magistrate for valid and cogent reasons after
considering the averments of the complaint
and the statements of the complainant and the
witnesses was of the opinion that there was no
sufficient material/ ground to proceed against
the accused. It is not only the prima facie case
where the Magistrate chooses to adopt the
course provided under Chapter XV of the
Cr.P.C. on a complaint but the Magistrate is
also required to satisfy himself of the
sufficiency of the material/evidence to
proceed against the accused. The learned
Magistrate cannot be said to have exercised
his discretion improperly or against any
express provision of law. The learned
Magistrate after applying his judicial mind to
the evidence and material before him had
dismissed the complaint under Section 203
Cr.P.C. The said order passed by the learned
Magistrate should not have been interfered
with by the Revisional Court.

29. In view of the aforesaid, I am of
the view that the order passed by learned
revisional court is unsustainable and the
present revision is allowed. Judgment and
order
dated
31.03.2015
passed
by
Revisional Court is set aside.
----------
(2019)11ILR A43

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.10.2019

BEFORE
THE HON'BLE RAJEEV SINGH , J.

U/S 482/378/407 No. 5778 of 2019

Jyotinder Singh Randhawa ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Arun Sinha, Sri Siddhartha Sinha, Sri
Umang Agarwal.

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code, 1973 Sections 10(3) and 10(4) of
the Passports Act, 1967- Impounding of
passport. The Passports Act, 1967 is a
complete code read with the Passport
Rules, 1980. Held: Merely on the basis of
anticipation mentioned in the report of
the
Prosecuting
Officer
presumption
cannot be drawn at the time of passing
the order for retaining the passport -The
court below is bound to record its
satisfaction for the same- The trial court
cannot retain the passport on the
request of the Prosecuting Officer. (Para
12,14,16,17 & 18)

Application for release of passport of the
applicant
rejected-Report
of
Prosecuting
Officer that in case the passport is returned to
the applicant he may leave the country. No
written request was made by the Forest
44 INDIAN LAW REPORTS ALLAHABAD SERIES
Official for retaining the passport before the
court below - Forest Officer has not placed
any report before the court below to impound
the passport of the accused-applicant - No
application filed by the Forest Officials before
the Passport Authority under the provisions of
The Passports Act, 1967 to impound the
passport during the trial.

Application u/s 482 Cr.P.C. allowed (E-3)

List of cases cited :-

1. Suresh Nanda Vs CBI (2008) 3 SCC 674

(Delivered by Hon'ble Rajeev Singh, J. )

1. Heard Mr. Arun Sinha, learned
counsel for the applicant, Mr. Aniruddh
Kumar Singh, learned A.G.A. for the
State and perused the record.

2. The present application has been
filed under Section 482 Cr.P.C. for
quashing the order dated 06.07.2019 for
retaining the passport of the applicant,
passed
by
learned
Chief
Judicial
Magistrate, Bahraich in Case No. 3740 of
2018,
under
Sections
9/27/29/31/32/39/44/48A/49B/50/51(IC)/
52/38V of the Wildlife (Protection) Act,
1972 and Section 26 of the Forest Act,
1927, Range- Motipur, Katarniyaghat,
District Bahraich and to release the
passport.

3. Learned counsel for the applicant
submitted that the applicant is a renowned
and
acclaimed
Golfer
who
has
represented India across the Globe and
has been awarded Arjuna Award by
Hon'ble the President of India and is
having no criminal antecedents. He
further submitted that the applicant was
falsely implicated in the aforesaid case by
the Forest Officials and nothing, as
claimed by the Forest Officials, has been
recovered from the applicant or from his
car. The "Jungle Fowl" which is alleged
to have been hunted by the applicant and
allegedly recovered from the vehicle of
applicant does not come in any of the
Schedule of Animal and their Species as
provided under Wild Life (Protection)
Act, 1972.

4. Learned counsel for the applicant
further submitted that the penalty in the
Wild Life (Protection) Act, 1972 has been
provided under Section 51, under which
the accused may be punished with the
imprisonment which shall not be less than
three years or with fine which may extend
to Rs. 25,000/- but may extend to seven
years with fine which shall not be less
than Rs. 10,000/-. He further submitted
that the applicant was enlarged on bail by
this Court in the aforesaid case vide order
dated 21.02.2019 in Bail Application
No.1402 of 2019 with the directions that
the "accused-applicant" will co-operate in
the investigation of the case and will also
deposit his passport till submission of
report under Section 173 Cr.P.C. , it was
further directed that the decision with
regard to the retention of the passport will
be taken by the trial court after the report
so submitted under Section 173 Cr.P.C.

5. Learned counsel for the applicant
further submitted that the applicant was
detained by the Forest Officials on
26.12.2018 and the Case was registered
against him bearing No. 68 of 2018-19,
Range- Motipur, District Bahraich and the
seizure report was sent by the Forest
Officials to the Chief Judicial Magistrate,
Bahraich. Thereafter, the complaint dated
22.02.2019 was filed in the court of Chief
Judicial
Magistrate,
Bahraich
under
Section 55 of the Wild Life (Protection)
Act, 1972 and on the same date the
3 All. Jyotinder Singh Randhawa Vs. State of U.P.
45
cognizance was taken by the court below
on the aforesaid complaint without
considering the fact that the complaint
was filed under Section 55 of Wild Life
(Protection) Act it is observed that the
charge sheet was filed and the cognizance
was taken on the charge sheet and he
further submitted that in the case of
complaint he had to follow the procedure.

6. Learned counsel for the applicant
further submitted that on 21.02.2019 the
applicant was enlarged on bail by this
Court in Bail Application No. 1402 of
2019 and on the next date, i.e., on
22.02.2019, the Complaint Case was filed
and after letting off from jail, the
applicant moved an application before the
Chief Judicial Magistrate, Bahraich on
05.03.2019 and prayed for release of his
passport, but the application of the
applicant was rejected vide impugned
order with the observation that the
Prosecuting Officer has reported that in
case, the passport is returned to the
applicant, he may leave the country.

7. Learned counsel for the applicant
further submitted that the court below has
committed error in considering the report of
the
Prosecuting
Officer
and
making
observations since the case is to be listed for
framing of the charge, therefore, the presence
of accused-applicant is necessary in court as
well as at the time of recording of statement
under Section 313 Cr.P.C. etc. and in case, the
passport is released in favour of the applicant,
he may go abroad and the trial of the case
would be hampered. The judgment of the
Hon'ble Supreme Court relied by the
applicant was also not considered in true
sense by the court below.

8. Learned counsel for the applicant
further submitted that the complaint was
filed on 22.02.2019, under Section 55 of
the Wild Life (Protection) Act, 1972 in
the court below and though the applicant
was in custody but the charge was not
framed and there is no explanation
recorded by the court below as to why the
charge could not be framed.

9. Learned counsel for the applicant
relied on the decision of Hon'ble Supreme
Court in the case of Suresh Nanda vs.
Central Bureau of Investigation (2008) 3
SCC 674, on paragraphs 18 and 19, and
submitted that the trial court cannot
impound the passport.

10. Learned A.G.A. opposed the
prayer of the applicant and submitted that
there is no illegality in the order passed,
as the passport of the applicant was
deposited under the order of this Court
vide order dated 21.02.2019 in Bail
Application No.1402 of 2019.

11. After carefully considering the
arguments of the counsel for the applicant
as well as learned A.G.A. and going
through the records, it is found that on the
basis of allegation of hunting in the Tiger
Reserve
Forest,
the
applicant
was
detained on 26.12.2018 and the recovery
memo/seizure memo was prepared by the
Forest Officials and registered the Case
No. 68 of 2018-19, under Sections
9/27/29/31/32/39/44/48A/49B/50/51(IC)/
52/38V of the Wildlife (Protection) Act,
1972 and Section 26 of the Forest Act,
1927, Range- Motipur, Katarniyaghat,
District
Bahraich.
Thereafter,
the
applicant was enlarged on bail by this
Court vide order dated 21.02.2019 with
the condition that the accused/applicant
will deposit his passport before the trial
court, till the submission of report under
Section 173 Cr.P.C., after the report so
46 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted further decision with regard to
the retention of the passport will be taken
by the trial court. It is also found from the
record that on 22.02.2019, the complaint
was filed under Section 55 of the Wild
Life
(Protection)
Act,
1972.
The
provision of Section 55 (supra) is
reproduced as under-

"[55. Cognizance of offences.--
No court shall take cognizance of any
offence against this Act except on the
complaint of any person other than--

(a) the Director of Wild Life
Preservation
or
any
other
officer
authorised in this behalf by the Central
Government; or

[(aa) the Member-Secretary,
Central Zoo Authority in matters relating
to violation of the provisions of Chapter
IVA; or]

[(ab) Member-Secretary, Tiger
Conservation Authority; or

(ac) Director of the concerned
tiger reserve; or]

(b) the Chief Wild Life Warden,
or any other officer authorised in
thisbehalf by the State Government
2[subject to such conditions as may be
specified by that Government]; or

[(bb) the officer-in-charge of
the zoo in respect of violation of
provisions of section 38-J; or]

(c) any person who has given
notice of not less than sixty days, in the
manner prescribed, of the alleged offence
and of his intention to make a complaint
to the Central Government or the State
Government or the officer authorised as
aforesaid.]"

12. As no such presumption has been
shown in the complaint filed by the Forest
Officials that in case, the accused-applicant
is released on bail, then he would flee away
from the country and will not cooperate in
the trial of the case, but merely on the basis
of anticipation mentioned in the report of the
Prosecuting
Officer,
the
court
below
presumed that the applicant would flee away
and the proceedings of the trial would be
hampered.

13. The Provisions of the Sections
10(3) and 10(4) of the Passports Act,
1967 (hereinafter referred as "the Act")
provides that the passport authorities are
empowered
to
impound/revoke
the
passport in case, the criminal proceeding
is pending against the holder. The
Provisions of Sections 10(3) and 10(4) of
The Act are reproduced as under-

"10. Variation, impounding and
revocation
of
passports
and
travel
documents.--

(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:
3 All. Jyotinder Singh Randhawa Vs. State of U.P.
47

5[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
otherpassport.]

(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 offence 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.

(4) The passport authority may
also revoke a passport or travel document
on the application of the holder thereof."

14. It is not the case of the State that
the Forest Officer has placed any report
before the court below for impounding
the passport of the accused-applicant and
if no such request is moved by the Forest
Officer before the court then presumption
cannot be drawn at the time of passing the
order for retaining the passport and the
court below is bound to record its
satisfaction for the same. The Forest
Officials ought to have moved an
application before the Passport Authority
under the Provisions of The Act for
impounding the passport during the trial.

15. In the case of Suresh Nanda
(supra),
Hon'ble
Apex
Court
has
categorically held that court cannot
impound
a
passport.
The
relevant
paragraphs Nos. 17, 18 and 19 of the
aforesaid case are being reproduced as
under-

"17. In the present case, neither
the Passport Authority passed any order
of impounding nor was any opportunity of
hearing given to the appellant by the
Passport Authority for impounding the
document. It was only the CBI authority
which has retained possession of the
passport (which in substance amounts to
impounding it) from October 2006. In our
opinion, this was clearly illegal. Under
48 INDIAN LAW REPORTS ALLAHABAD SERIES
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).

18. In our opinion, even the court
cannot impound a passport. Though, no
doubt, Section 104 CrPC 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 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 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 under Section 104 CrPC though it
can impound any other document or thing.

19. For the aforesaid reasons,
we set aside the impugned order of the
High Court and direct the respondent to
hand over the passport to the appellant
within a week from today. However, it
shall 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
appellant
in
accordance with law."

16. As it is evident from the record
and also from the impugned order that no
any written request was made by the
Forest Official for retaining the passport
before the court below and only the
Prosecuting
Officer
has
made
his
anticipation that in case, the passport of
applicant is released, he may flee away
This submission must be based on the
instruction of the Authority. The trial
court cannot retain the passport on the
request of the Prosecuting Officer.

17. The Act is the complete code
read with the Passport Rules, 1980 which
contains the procedure for issuance and
revocation of passport, Section 10 of the
Act clearly provides the procedure for
impounding the passport, in case, any
criminal proceeding is initiated against
the holder, therefore, it is appropriate that
the opposite party may approach to the
Passport Authority for impounding of the
passport of the applicant.

18. In view of the above facts and
discussions, the present application is
allowed. The impugned order dated
06.07.2019 is quashed. The passport of
the applicant be handed over to him
forthwith. However, it shall be open to
the opposite party to approach to the
Passport Authority under the Provisions
of the Act for impounding the passport of
the applicant in accordance with the law.
----------
(2019)11ILR A48

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.04.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Application No.6348 of 2005
(U/S 482 Cr.P.C.)

Muttan & Ors. ...Applicants
Versus
The State. of U.P.& Anr. ...Opposite Parties

Counsel for the Applicants:
 Sri
A.R.Gupta.