SHANAVAS BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the 1st accused in a case pending on the file of the Judicial Magistrate of the First Class-II, Perinthalmanna. He is being prosecuted with some others for offences punishable under Sections 498-A and 406 read with Section 34 of the Indian Penal Code, on a crime registered over a complaint filed by his wife.

(2.) On registration of the crime, petitioner and the other accused moved for pre-arrest bail under Section 438 of the Code before the Sessions Judge, Manjeri. Their application was allowed vide Annexure A2 order with directions to move for regular bail before the magistrate within the time fixed, imposing some other conditions also, which included a direction to the accused to surrender their passports before the magistrate, and if not in possession of passports, then, to file affidavit stating that fact.Petitioner appeared before the magistrate within the time fixed and moved for regular bail with an affidavit stating that his passport had been lost. He was enlarged on regular bail.Subsequent to his release on bail, while the case was pending, he left the country, making use of his passport, and, then, the de facto complainant, his wife, moved an application for cancellation of the bail granted to him. Petitioner resisted that application contending that after bail was granted, he placed an advertisement in a newspaper over the missing of his passport and in response to that a person who had obtained custody of the document handed it over to him. He advanced another case also, that pending the criminal proceedings the wife had moved an application claiming maintenance and, pursuant thereto, on his agreement to provide maintenance, with her consent he left the country using his passport. The learned Magistrate found no merit in the case pleaded by the petitioner for flouting the conditions on which he had been enlarged on bail and, thereupon, Annexure A7 order was passed cancelling his bail with direction to address the Passport Officer 'to impound his passport'. That order is challenged in the above petition invoking the inherent powers of this court under Section 482 of the Code.

(3.) Learned counsel for the petitioner assailed Annexure A7 order on two grounds: Petitioner was granted bail by the Sessions Judge, and the condition directing him to produce the passport was imposed while allowing his application for pre-arrest bail. Though he had been directed to move for regular bail within the time fixed before the magistrate, so far as violation of the condition relating to the production of passport, even if that be so, it is contended, only the Sessions Judge has empowerment to order for cancellation of his bail. The other ground canvassed to assail Annexure A7 order is that the direction issued by the magistrate to address the Passport Officer 'to impound his passport' on cancellation of his bail is violative of the provisions covered by the Passports Act, 1967, for short, 'the Act'. The Passport Officer is the competent authority to pass an order for impounding of passport or travel document, and before taking a decision thereof, the person proceeded against must be heard, is the submission of the counsel. In other words, a pre-decisional hearing by the Passport Officer before passing any order for impounding of the passport being the mandate of the Act, the direction issued by the magistrate in Annexure A7 order is not only incorrect, but, it is improper and unsustainable, is the submission of the counsel.