The bench of Justice P.V Kunhikrishnan of the Kerala High Court today differed from the law laid down by the High Court's coordinate bench last week wherein it was held that Section 438 of the Code of Criminal Procedure has no restrictive mandate that a person outside India cannot file an application seeking anticipatory bail.
It may be noted that while granting anticipatory bail to actor-producer Vijay Babu in a rape case, Justice Bechu Kurian Thomas last week held that a person who is outside India can very well file an anticipatory bail application, as long as before the final hearing, the accused is in India (Vijay Babu v. State of Kerala & Anr):
"Section 438 Cr.P.C does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail. It is possible that a person can apprehend arrest even outside the country for an offence that occurred in India. With the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country. An apprehension of arrest can arise even while the applicant is residing outside the country. Thus, when a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, court cannot read into the provision such a restriction which the legislature did not incorporate."
Read more about the court's order and observations here: Person Outside India Can File Anticipatory Bail Application; But Before Final Hearing, Accused Must Be In India: Kerala High Court
Now, today, observing that the dictum laid down in Vijay Babu's case (supra) requires reconsideration, the bench of Justice PV Kunhikrishnan came up with the following three questions and decided to refer the matter to Chief Justice for appropriate order (for consideration by a division bench)
1. If a person who is an accused in a case absconded from India and went abroad after fully knowing about the registration of a nonbailable offence against him, and thereafter if he file bail application under Section 438 Cr.P.C, whether the bail court should entertain such a bail application?
2. When an accused went abroad, after knowing that he is an accused in a nonbailable offence, and thereafter filing a bail application before this Court, whether he is entitled interim bail as per Section 438(1) Cr.P.C?
3. Whether the bail court has jurisdiction to pass orders restraining the Police in arresting accused without passing interim bail orders as per Section 438(1) Cr.P.C?
The order was passed in an anticipatory bail plea filed by one Anu Mathew who is a resident of Kerala but presently residing in Kuwait. She has been booked under Sections 11 and 12 of the POCSO Act, 2012, Section 3 of the Indecent Representation of Women (Prohibition) Act, 1986, and other various sections of the IPC and IT Act.
This was the second bail application filed by the petitioner and when the matter came up for consideration before Justice PV Kunhikrishnan's bench on June 22, 2022, it was submitted that as on that day, the petitioner is not available in India.
Therefore, the Court proceeded to dismiss the bail application as not maintainable in the light of the judgment of this Court in Shafi S.M. v. State of Kerala and Anther [2020 (4) KHC 510], however, before the Judgment could be dictated, it came to the notice of the Court delivered in Vijay Babu (supra) wherein an opposite view had been taken.
It may be noted that in Shafi's case, it was held by the Kerala HC that a person sitting in another country cannot file an application under S.438 of the Cr.P.C. before the Court apprehends arrest.
"A bail application under S.438 Cr.P.C. cannot be filed before this Court by the petitioner sitting in an armchair in a foreign country. He is not entitled an order under S.438 Cr.P.C. in such a situation. Jurisdiction of this Court under S.438 Cr.P.C. is discretionary," it was held.
However, since in Vijay Babu's case, the HC took a different view. Therefore, the Court posted the instant case as "to be spoken" on 24.06.2022.
The Court opined that when in Shafi's case (supra) the Court has already held that an application under Section 438 Cr.P.C. cannot be filed before this Court by an accused sitting in a foreign country, then the co-ordinate bench (in Vijay Babu case) ought not to have decided the matter without referring the same to the Division Bench.
Against this backdrop, the Court framed three abovementioned questions and referred the matter to the Chief justice to take the appropriate Act. In the instant case, since the bail applicant came back to India, the Court decided to grant her interim bail while adjourning the bail plea for the consideration of a Division Bench.
Case Title: Anu Mathew v. State of Kerala
Citation: 2022 LiveLaw (Ker) 305