Accused in serious criminal cases avoid arrest for years by using interim 'not-to-arrest' orders: Kerala High Court

Persons who are accused in serious cases including rape and attempt to murder often evade arrest for several years by taking advantage of interim "not-to-arrest orders" passed by the court, the Kerala High Court recently observed [MA Mohanan Nair v State of Kerala]..Justice A Badharudeen said that he has come across hundreds of cases where an accused, who has moved an anticipatory bail application before the court, procures an interim order protecting him from arrest and then avoid arrest, sometimes for several years. "In the interest of justice and to safeguard the criminal justice delivery system, I am inclined to mention certain instances of similar nature, in hundreds of cases, which I came across, where after filing anticipatory bail applications starting from the year 2020 onwards and on getting interim protection ‘not to arrest’ the bail applicants avoided arrest in many cases where very serious offences are alleged to be committed by the bail applicants including offences under Section 376, 307, 326, 406, 409, 395, 420 of the IPC etc., (the list of offences is not exhaustive)," Justice Badharudeen stated in the order..He also noted that since custodial interrogation cannot be conducted when a 'not-to-arrest' order is in operation, the investigation into such cases gets hampered. "It is disgusting to note that in view of the interim order passed by this court ‘not to arrest’, the hands of the Investigating Officer have been chained," the judge added..The Court further said that it was appalling that even in rape cases, the medical examination of the accused, which is absolutely necessary, is not done due to such not-to-arrest orders. As a result, the final report in such cases have to be filed without this crucial evidence, the judge observed."Invariably the ultimatum of such investigation results in acquittal of the accused for want of evidence and the said practice should be avoided to save the system intact," the Court opined. To curb such incidents, the Court has now directed the Registrar (Judicial) to ensure that pending anticipatory bail applications with interim not-to-arrest orders are posted before the appropriate bench for speedy disposal..Citing the directions of the Supreme Court on the need for time-bound disposal of bail applications in Satender Kumar Antil v. Central Bureau of Investigation & Ors., and Hussain & Anr. v. Union of India, the Court reiterated that anticipatory bail applications should ordinarily be disposed of within two-three weeks or within a period of six weeks. .These observations were made while considering the anticipatory bail plea filed by one Mohanan Nair, a peon working at the Konni Regional Co-operative Bank.Nair stood accused of having been part of a group that misappropriated over ₹5.39 crores.He was the third accused person in the crime and was charged with forgery, cheating, criminal breach of trust and other offences punishable under the Indian Penal Code (IPC).Nair filed his anticipatory bail plea on February 16, 2021, and was granted an interim order protecting him from arrest.The Court said that it was "shocking" that banking on that order, Nair avoided arrest and also avoided aiding the investigation.The anticipatory bail plea was posted several times after the interim order. However, after March 18, 2021, the case was never posted before the appropriate bench until it was listed before Justice Badharudeen in July 2023, over two years later.Even though the final report of the investigation was filed during this period, the Court expressed concern over whether the investigation was effective since Nair was not questioned."In cases involving allegation of forgery (as in the facts of this case) also the specimen signature, handwriting, etc., which are essential to prove the allegations could not be collected by the Investigating Officer and the Investigating Officer was forced to file final report without opting for the said vital mode of investigation," the Court observed. However, the Court ultimately deemed it fit to dispose of the Nair's petition granting him the liberty to move for regular bail..Nair was represented by advocate Anila Umesh. Senior Public Prosecutor PG Manu appeared for the State..[Read Order]