Granting Anticipatory Bail To Persons Who Flee Country Being Aware Of FIR Registered Against Them Is Not Proper: Kerala High Court

The Kerala High Court recently held that it may not be appropriate to grant anticipatory bail in circumstances where the accused fled the country being fully aware of a non-bailable offence registered against him/her.The court also observed that while considering a bail application filed by an accused who is abroad, courts must consider imposing the condition that the accused shall be available for interrogation by a Police Officer, as and when required and that the accused shall not leave India without the previous permission of the Court. A division bench of Justice Alexander Thomas and Justice C S Sudha observed:“if such an accused had absconded from India and had gone abroad knowing fully well about the registration of a crime in respect of a non bailable offence, then thereafter, though he may technically have the locus standi to maintain a pre-arrest bail plea, but if as a matter of fact, the Court is convinced that he has absconded and fled away from the law enforcement agencies, etc., then it may not be right and proper exercise of jurisdiction to grant interim bail to such an accused who is abroad,” the court observed. In view of the reference made by single benches of the Court, the division bench of the court was considering the question of whether the presence of the accused inside the country is mandatory while applying for bail under Section 438 of the CrPC. The court was also posed with the question of whether the court should entertain a bail application by an accused who absconded from India after knowing about the registration of the non bailable offence against him/her. The court also considered whether such a person would be entitled to interim bail under Section 438 (1) of Cr.P.C.The court observed that in numerous instances, the person accused of a crime may have been abroad at the time the crime was registered, which would indicate that they did not intend to avoid legal consequences. Even if they left the country after the crime was reported, they may argue that they had a valid reason for leaving due to work obligations and that they plan to return to India promptly to cooperate with the investigation and trial. The court should carefully consider and evaluate the accused's factual statements, determining whether they are ‘genuine and bondafide’ or merely an attempt to deceive the court, the Court noted. Courts should also be mindful that people often travel abroad for work, particularly in countries with strict labour laws like in the Gulf region, and failing to report to work could result in loss of employment. “The courts should always have the “third eye”, to discern the genuineness and bonafides of such pleas, bearing in mind that, the serious issues of personal of liberty are entailed in consideration of such bail pleas. So also, the Courts should intensely apply its mind as to whether the attempt of the accused who is abroad, is to buy time and stultify the investigation and the trial.” If the court decides to grant anticipatory bail to an accused who is abroad when the application is filed, it must carefully consider setting conditions to regulate the grant of bail, as outlined in Section 438(2) of the Criminal Procedure Code, the Court observed. Section 438(2) specifies several conditions to be imposed on the accused, such as making themselves available for police interrogation as needed [condition (i)] and not leaving India without the court's permission [condition (iii)]. These conditions aim to regulate the grant of bail to ensure that the accused will cooperate with the investigation and trial and not flee the country.“Since the cardinal purpose of bail is the security for appearance of the accused persons, on which he is released pending trial or investigation, etc. The courts have an obligation to consider the imposition of appropriate conditions, especially where the accused is abroad at the time of making the application, to consider as to whether conditions as in clauses (i), (iii), etc., are to be imposed.”, the court observedThe Court also added that courts may also include a condition to regulate the grant of interim bail, an ancillary power granted to it under Section 438(1), by requiring the accused to return to India and cooperate with the investigation within a specific and reasonable time frame. If, during the consideration of the main application, the court finds that the accused has failed to comply with this condition, and the court is convinced that the accused lacks bondafides, then the court can choose to dismiss the main application and also vacate the order granting interim bail. “this option can be a basis for the court to be assured that the bail granted on interim basis is not abused or misused by the accused and to ensure the effectuation of the condition that the accused should be in India, as envisaged in Clause (iii) of Sec.438(2).”The Court also observed that if the court considering the bail application is convinced that if the accused...

Granting Anticipatory Bail To Persons Who Flee Country Being Aware Of FIR Registered Against Them Is Not Proper: Kerala High Court

Sheryl Sebastian

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