MOHAMMED RAFEEK Vs. UNION OF INDIA

JUDGEMENT

(1.) Could a criminal court while granting bail to a person accused or suspected of commission of a non bailable of-fence for which such court is empowered to impose conditions direct such person to surren-der 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 pun-ishable 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 alleg-edly 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 sunen-dered 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 pur-pose). 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 chal-lenge.

(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 Pass-port 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 coun-sel has placed reliance on the decisions in Suresh Nanda v. Central Bureau of Investigation, 2008 3 SCC 674. Pushpal Swamkar v. State of Chhattisgarh, 2009 CrLJ 1062 and Jose Peter v. Vijayakumar., 2009 3 KerLT 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 en-sure presence of the accused in the course of the investigation, enquiry or trial that he shall surrender his passport.