Making Interim Bail Of Accused 'Absolute' Due To Illegal Arrest Not Valid, Renders Subsequent Lawful Arrest Impossible: Kerala High Court

The Kerala High Court recently held that making absolute an order of interim bail granted to an accused on a finding that his arrest was illegal would make it impossible for the investigating agency to arrest him subsequently in a lawful manner. It found that such orders are wrong and have no legal effect.Justice A. Badharudeen observed that a finding of illegal arrest would relegate an arrestee back to pre-arrest stage and at that stage, if an interim bail is made absolute, it would amount to setting the accused free.The bail applicant before the Court was the 2nd accused in a crime before the Vigilance and Anti-Corruption Bureau. The allegation is that while working as Industries Extension Officer, who is responsible for granting loan subsidies to BPL women, he abused his official position, committed criminal misappropriation, breach of trust, used forged documents as genuine and granted subsidies to illegal beneficiaries. He is alleged to have misappropriated a sum of 1.14 crores along with the 1st accused.The accused were arrested but the Special Judge found that the arrest was illegal since it was not in accordance with the procedure established by law. An interim order was passed releasing them. The next day, the Special Judge made the interim order absolute. Relying on Babu M. v. State of Kerala, it also held that the order would not prevent the Investigating agency from arresting the accused in a lawful manner. Thereafter, the 2nd accused filed a pre-arrest bail application before the High Court.The Court referred to the order of the Special Judge and observed:“To be more explicit, when it is found that the arrest was illegal, the accused is free from custody of the police as well as the Court, and the question of execution of bail bond doesn't arise. In such a case, there is no necessity for the Special Judge to make the interim bail absolute. By making the interim bail absolute, the learned Special Judge held that the accused were set at free. It is noticed that the Special Judge went wrong in making the interim bail absolute instead of holding that the accused were set free to the stage before their arrest. Then comes another illegality. If the bail bond continues in view of the order passed by the learned Special Judge, because he made the order absolute, it is not possible for the investigating agency to arrest the petitioner, who is on bail, deemed to be in judicial custody at the hands of the sureties without cancelling the bail. To put it otherwise, arrest of an accused, whose interim bail was made absolute and continues without cancellation of bail, doesn't arise. If so, the same is another illegality. Thus the illegality has to be addressed holding that the order passed by the learned Special Judge, making the interim bail absolute, is wrong and has no legal effect and the accused are free before the stage of arrest.”The Court placed reliance on the Supreme Court decision in Devinder Kumar Bansal v. State of Punjab to further observe that pre-arrest bail can be granted only in exceptional circumstances where in the prima facie opinion of the Court the applicant has been falsely implicated or the allegations are politically motivated or are frivolous.According to the Court, in the present case there are no exceptional circumstances warranting grant of anticipatory bail and the prosecution case has not been found to be frivolous. Thus, it dismissed the plea. The applicant was also directed to surrender before the investigating officer and cooperate with the investigation, failing which the investigating officer is to proceed as per law.Case No: Bail Appl. No. 9746 of 2025Case Title: Praveen Raj v. State of Kerala Citation: 2025 LiveLaw (Ker) 595Counsel for the petitioner: Sreejith S. Nair, Sasthamangalam S. Ajithkumar (Sr.), Satheesh Mohanan, MahimaCounsel for the respondent: Rajesh A. – Spl. PP – VACB, Rekha S. – Sr. PP – VACB Click to Read/Download Judgment

Making Interim Bail Of Accused 'Absolute' Due To Illegal Arrest Not Valid, Renders Subsequent Lawful Arrest Impossible: Kerala High Court

K. Salma Jennath

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