JUDGMENT
Wan Yahya J:
[1] On 18 June 1990 the respondent was produced and charged before the Sessions Court Kuala Lumpur in respect of an nonbailable offence punishable under s 409 of the Penal Code. The learned Sessions Judge allowed the respondent to be released on his entering into a bail bond in the sum of RM400,000 in two sureties and on condition that he would surrender his international passport to the Court. On the same day the Deputy Public Prosecutor acting under the proviso to Criminal Procedure Code applied for and obtained the order for the case to be transferred to the High Court, Kuala Lumpur. On 13 July 1990 the respondent who considered it imperative that he should make a compelling business trip to Jakarta filed a notice of motion in the High Court seeking for an order for the release of his international passport. Shaik Daud, J after hearing both parties varied the condition imposed by the Sessions Judge and ordered that the international passport be returned to the respondent for the purpose of a specific 5 day trip to Jakarta only and that the same be surrendered to the Court within 48 hours of the respondent's arrival in this country.
[2] The Public Prosecutor appealed against the order. It is the appellant's contention that the implied power to impose condition for the surrender of the respondent's passport under s 388 of the Criminal Procedure Code is not variable by the High Court either under s 389 of the same Code or in the exercise of its inherent power, but it has to be by way of an appeal under s 394 of that Code.
[3] It may be helpful at this juncture to ascertain briefly the nature and implication of this frequently exercised practice of our Courts to order an accused person to enjoin to the bail offered by the Court a condition that he surrenders his international passport.
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[4] The law relating to bail is set out in Chapter XXXV of the Criminal Procedure Code. Section 387 sets out the right of an accused or arrested person to bail in bailable offence. Section 388 provides for the circumstances where a police officer or the Court may exercise its discretion to release on bail any person accused of a non bailable offence. Both sections do not have any specific provision for the imposition of conditions. However, Indian authorities seem to favour the view that when discretion is given to the Court to refuse or grant bail, that discretion in itself implies a discretion to grant bail subject to certain conditions. But, when there is no discretion to refuse bail, the question of imposing conditions does not arise - Rex v. Genda Singh & Ors [1950] All ER 525. Thus conditions can be included in a bail bond issued pursuant to s 388 but not to s 387 as the latter section gives no discretion to the officer or Court to withhold bail when the person arrested is prepared to provide such bail. Similarly in Hazari Lal Gupta v. Rameshwar Prasad & Anor AIR [1972] 484 it was held that the High Court while granting bail can lay down a condition restricting the accused person's departure from India by requiring him to surrender his passport. Several earlier Indian authorities had expressed the same view on this matter. In Varadaraja Mavalliar [1957] 1 Mad LJ (Cri) 717, the Madras High Court reviewing the case law on this subject held that in non bailable offences the Court can impose restriction in suitable cases. In re Kota Appalakonda [AIR 1942 Mad 740] the Court in holding that condition made under s 496 of the Indian Cr PC to be invalid made the following observation on the scope of s 497:
With regard to non-bailable offences, I can see no objection to imposing conditions of this kind; for the Magistrate has an option to grant bail or to refuse bail and he has also the power under s 497(5) of the Criminal Procedure Code of causing persons so released to be arrested and committed to custody, which sub-section he would apply in case the condition was not fulfilled.
[5] The provisions of ss 496, 497 and
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