1. Could a criminal court while granting bail to a person accused or suspected of commission of a non bailable offence for which such court is empowered to impose conditions direct such person to surrender in court his passport? That question is raised for a decision in this proceeding.

2. Petitioner is the first accused in C.C.No.630 of 2008 of the court of learned Judicial First Class Magistrate, Malappuram for offences punishable under Secs.420 and 468 r/w Sec.34 of the Indian Penal Code (for short, "the IPC"). Prosecution case is that for the amount allegedly due from petitioner, he issued a cheque on the account maintained by the 2nd accused and thereby committed forgery and cheating. Learned Magistrate granted bail to the petitioner subject to the condition that petitioner surrendered his passport. Petitioner complied with that condition. Later, petitioner filed CMP No.1260 of 2011 requesting to release the passport for its renewal (learned counsel submits that as per instruction given to him there was also a request to permit petitioner go abroad for business purpose). Learned Magistrate allowed CMP No.1260 of 2011 by order dated March 9, 2011 subject to the condition that petitioner executed bond for Rs.10,000/-, deposited `10,000/- as cash security and produced the passport before court after its renewal. That order is under challenge.

3. Learned counsel has contended that the criminal court has no power to 'impound' the passport. That power is vested only with the Passport authority under Sec.10(3) of the Passport Act, 1967 (for short, "the Act"). According to the learned counsel in the circumstance, learned Magistrate was not correct in directing surrender of passport while granting bail and in the order dated March 9, 2011. Learned counsel has placed reliance on the decisions in Suresh Nanda v. Central Bureau of Investigation [(2008) 3 SCC 674], Pushpal Swarnkar v. State of Chhattisgarh [2009 (1) KLD 825 (Chh.)] and Jose Peter v. Vijayakumar [2009 (3) KLT 96]. Learned Public Prosecutor contends that it is within the power of the criminal court while granting bail in a non bailable offence to impose a condition to ensure presence of the accused in the course of the investigation, enquiry or trial that he shall surrender his passport.

4. Petitioner is accused of commission of offences punishable under Secs.420 and 468 of the Code which are non bailable. Sec.437 of the Code deals with power of the court to grant bail in non bailable offences. Offences under Secs.420 and 468 of the IPC are punishable with imprisonment which may extend to seven years. Under Sec.437(3) of the Code while releasing a person accused or suspected of commission of an offence punishable with imprisonment which may extend to seven years or more (or in other cases mentioned in that sub section),

"the court shall impose the conditions,-

(a) that such person shall attend in accordance with the conditions of the bond executed under this chapter,

(b) ...............

(c) ...............

andmay also impose, in the interest of justice, such other conditions as it considers necessary."

Even in the case of non bailable offences other than falling under sub sec.(3) of Sec.437, the court or Magistrate may in its/his discretion impose conditions while granting bail to the person accused or suspected of commission of such offence.

5. Sub sec.(3) of Sec.437 of the Code requires the Magistrate or court to impose conditions while granting bail to the petitioner. One condition which learned Magistrate is required to impose is that petitioner shall attend in accordance with the conditions of the bond executed by him. While granting bail, the Magistrate or court has to ensure that the accused or person suspected of commission of the offence is available for investigation, enquiry and trial. To ensure that, the Magistrate or court shall impose conditions on such person while releasing him on bail. In non bailable offences falling outside the scope