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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.

Suresh Nanda was not a case of the criminal court imposing a condition while granting bail in a non bailable offence to surrender the passport. The Supreme Court was not considering the power of criminal court in view of Sec.10(3) of the Act, to impose a condition to surrender the passport while granting bail in a non bailable offence. Instead, that question was left open as is clear from the observation in paragraph 20 (of Suresh Nanda's case) that :

"We, however, make it clear that we are not expressing any opinion on the merit of the case and are not deciding whether the passport can be impounded as condition for the grant of bail".

The function of the criminal court under Sec.437 of the Code is not merely to impose a condition in the bond that the person accused or suspected of commission of a non bailable offence and to whom bail is granted attended before the officer or court. The court has to ensure that the condition is complied. The court has to enforce it. The court has to ensure that the accused who is released on bail and who has a passport does not flee from justice. The "majesty of the law is affected when a wrong doer escapes its mighty clutches-whether arising out of a voluntary or involuntary situation." (See Bijayaketan Mohanty v. State of Orissa [1982 Crl.L.J. 1954] The court has to preserve the majesty of the law. That could be done, in the case of a person holding a valid passport by directing him to surrender the same in court. That the passport authority may, if proceeding in respect of an offence alleged to have  been committed by the holder of the passport or travel document are pending before a criminal court in India impound or cause to be impounded or revoked such document under Sec.10(3)(e) of the Act does not deprive the power and duty of the criminal court to enforce its order by appropriate direction. The Supreme Court in Hazarilal Gupta v. Rameswar Prasad and another [AIR 1972 SC 484] has held that sections 496, 497 and 498 of the (old) Code are not exhaustive of powers of the court in regard to terms and conditions of bail particularly when the High Court dealt with cases of that type, it was within the power of court to direct surrender of passport and that if the appellant (in that case) wanted to retain the passport the court might not have granted him bail. Viewed in that line, I am to hold that it is within the power of the criminal court while releasing a person accused or suspected of commission of a non bailable offence on bail under Sec.437 of the Code to impose a condition that such person shall  surrender his passport in court. The power granted by the Code under Sec.437 of the Code to impose conditions including restriction on movement while granting bail in non bailable offence can be taken as procedure established by law as stated in Article 21 of the Constitution. In that view, with great respect I disagree with the view expressed in Pushpal Swarnkar's case.

12. But the criminal courts have to take extreme care in imposing such condition. It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution. At the same time, interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation rights of the police and the interest of the  society. The criminal court has to consider possibility of the accused if released on bail, fleeing justice and thereby thwarting the course of justice which affects the majesty of the law, as also the individual rights of the accused. The court has to consider antecedents of the person accused or suspected of commission of the offence, nature of the offence he is said to have committed, necessity for his presence for investigation, duration of investigation and such other relevant factors. The court has to decide whether notwithstanding the personal liberty of the accused, interest of justice required that his right of movement should be restricted during the pendency of the case by directing him to surrender his passport. If necessary, it is open to the criminal court direct the accused to execute bond in case he has to go abroad for any purpose, for appropriate amount with sureties undertaking to appear before the Investigating Officer or court as the case may be as and when required to do so. These are though not  exhaustive, some of the matters to be borne in mind by the court while deciding whether there should be a condition to surrender the passport or when there is a request to release the passport already surrendered in court.