Nrisingha Murari Chakraborty & Ors v. State of West Bengal

SHINGHAL, J.-Thi> appeal by special leave is directed against the judgment of the Calcutta High Court dated June 23, 1971, upholding the conviction of the appellants for offences under sections 420 znd · 420/120B of the Penal Code but re~uci~g their sen.tences. The charge

related to cheating the passport 1ssumg authority of the Hooghly district by disho!1estly ind~cing him to _iss)le passports on the basis of false .representations. This Court has limited the special leave to the que~t10n whether the passports were "property" within the meaning of sect10n 420 of the Penal Code ? · . Speaking broadly, the allegation against the appellants was that t~ere was a conspiracy b~tween them as a result of which 1480 applica-tions were file~ for the issue of passports from July, 1956 to April, 1957, by Muslims and Chinese nationals. These applications were alleged to have been made by suppressing the real facts about the nationality and addresses of the applicants, and by making false re-presentations in several other respects. The prosecution alleged titat hundreds of passports were thus issued and delivered to persons who were not entitled to them under the law. Some of the appellants were alleged to be directly concerned with those applications, and it was further alleged that the orders of the Passport Authority were obtained by dishonest inducement and false representation.

A passport is a document which, by its nature and purpose, is a political document for the benefit of its holder. It recognises him as a citizen of the country granting it and is in the nature of a request to the other country for his free passage there. Its importance was examined by this Court in Satwant Singh Sawhney v. D. Ramarath-nam(') with reference to the provisions of the Indian Passport (Entry tho Into India) Act, 1920, (hereinafter referred to as the Act) and Rules made thereunder which were in force at the time when the offences were said to have been committed in this case. After referr-ing to sectioQS 3 and 4 of the Act, and rules 4 and 5 of the Rules, this Court observed as follows,-

" ...... possession of passport, whatever may be its meaning or legal effect, is a necessary requisite for leaving India for travelling abroad. The argument that the Act does not impose the taking of a passport as a condition of exit from India, therefore it does not interfere with the right of a person to leave India, if we may say so, is rather hypertechni-cal and ignores the realities of the situation. Apart from the fact that possession of passport is a necessary condition of travel in the international community, the prohibition against entry indirectly prevents the person from leaving India. The State in fact tells a person living in India 'you cau leave India at your pleasure without a passport, but you would not be allowed by foreign countries to enter them without it and you cannot also come back to India withoi:t. it.' No perso!' in India can possibly travel on those cond1t10ns. Indeed 1t is impossible for him to do so. 1 hat apa~t, even that th~o­ retical possibility of exit is expressly restncted by executive instructions and by refusal of foreign-exchange."

There can therefore be no doubt that a passport is a document of importance for travel abroad and is of considerable value to its holder.

The word "property" has been defined in the Century, Dictionary, which is an encyclopedic lexicon o~ the English language, as follows,-

"the right to the use or enjoyment or the beneficial light of disposal of anything th~t can be the subject of ownership; ownership; estate; especially, ownership of tangible things .... ; anything that may be exclusively possessed and enjoyed; ...... possessions."

As has been stated, a passport provides the several benefits mentioned above. It is a tangible thing and is capable of ownership. There can therefore be no doubt that it is "property". It is property of the State so long as it is with the passport issuilig authority and has not been issued to the person concerned and, after issue, it becomes the property of the person to whom it has been granted.

Our attention has not been invited to any case where the question now before us arose for consideration on an earlier occasion. But a somewhat similar question was considered by this Court in Abhaya-nand Mishra v. The State of Bihar ('). The appellant there applied to the Patna University for permission to appear at the M.A. examina-tion as a private candidate, representing that he was a graduate having obtained the B.A. degree in 1951 and had been teaching in a school. On that basis, an admission card was despatched for him to the Head-master of the school. It was however found that he was neither a graduate nor a teacher. He was prosecuted for the offence ·under section 420 read with section 511 of the Penal Code. He contended that his conviction was unsustainable because the admission card had no pecuniary value and was not property. This Court repelled the contention and held that although the admission card as such had no pecuniary value, it had immense value to the candidate appearing in the examination for he could not have appeared at the examination without it, and that it was therefore property within the meaning of section 415 of the Penal Code. While reaching that conclusion, this Court relied on Queen Empress v. Appasami (') and Queen Empress v. Sashi Bhushan. (') In Appasami's case it was held that the ticket entitling the accused to enter the examination room was "property", and in Sashi Bhushmi s case it was held that the term "property" included a written certificate to the effect that the accused had attended a course of lectures and had paid up his fees. On a parity of reason-ing, we have no doubt that looking to the importance and characteris-tics of a passport, the High Court rightly held that it was property within the meaning of sections 415 and 420 of the Penal Code.

We may make a reference to lshwarlal Girdharlal Parekh v. State of Maharashtra and others (') also. There the question for considera-tion was whether an order of assessment was "property" within the

(1) [1962] 2 S.C.R. 241. (2) [1889] I.L.R. 12 Mad.151.

(3) [18931!.L.R.15 All. 210. <4J [1969]1 s.~.193.

meaning of. section 420 I.P.C. The charge in.that case was that the appellant dishonestly or fradulently induced the income-true authorities and obtained an assessment order for less income-tax than due. It was held that the order of assessment received by an assessee was "property", since it was of greau importance to the assessee, as contain-ing a computation,' of his total assessable income and, as contain-tion of his tax liability. This Court also expressed the R view that the word "property" did not necessarily mean that the

thing, of which delivery was dishonestly desired by the person who cheats, "must have a money value or a market value, in the hand of the person cheated". It was held that "even if the thing has ne money value, in the hand of the person cheated, but becomes a thing of value, in the hand of the person, who may get possession of it as a result of the cheating practised by hini, it would still fall within the connotation of the term 'property' in section 420 I.P.C." This decision also lends support to the view we have taken for, as has been stated, a passport is a valuable document.

··--<.._ Our attention has also been invited to In re Packianathan(') and Local Government v. Gangaram.(2) The accused in Packianathan's case was prosecuted for an offence under section 419 read with sec-n tion 511 of the Penal Code. He was going to Ceylon, and he used

the permit which stood in the name of one Kumarswami, while his own name was J. Packianathan. On seeing the permit the Heaffl1 I Officer issued a health certificate. It was held that the health certifi-cate was "property" within the meaning of section 415 of the Penal Code and that if a person dishonestly and fraudulently induced the Health Officer to deliver it to him, he was guilty of an offence under section 419 I.P.C. Local Government v. Gangaram was a case where the accused obtained a certificate from the Deputy Inspector of Schools by stating untruly that he .had passed the examination. It was held that the certificate was 'property' within the meaning of sections 415 and 420 I.P.C. and that the accused was guilty of an offence punishable under section 420 I.P.C. In taking that view the Nagpur High Court relied on Queen Empress v. Appasami (supra) and Queen Empress v. Sashi Bhushan (supra) on which reliance was placed by I' this Court in Abhayanand Mishra v. The State of Bihar (Supra) referred to above.

So as passport was a tangible thing, and was a useful document, and could be the subiect of ownership or exclusive possession, it was "property" within the meaning of sections 415 and 420 I.P.C. There is therefore nothing wrong with the view which has been taken by the High Court and the appeal is hereby dismissed .. '_fhe appellants who are on bail shall surrender to serve out the remammg sentence.

(l) AI.R. 1920 Mad. 131 (1) (2) A.LR. 1922 Nagpur 229.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 277 of 1971.

Appeal by Special Leave from the Judgment and Order dated the 23rd June, 1971 of the Calcutta High Court in Cr!. A. No. 45 of 1964.

P. K. Chatterjee and Rathin Das for the Appellanis.

D. N. Mukherjee and G. S. Chatterjee for Respondents.