Courts can consider anticipatory bail plea under Section 438 CrPC moved by accused who is abroad: Kerala High Court

The Kerala High Court recently held that anticipatory bail pleas moved by persons who are outside the country, can be entertained by courts in exercise of the discretionary powers conferred on it under Section 438 of the Code of Criminal Procedure (CrPC) [Anu Mathew v State of Kerala] [Mohammed Anees v State of Kerala]..Based on a combined reading of Supreme Court precedents, the right to access to justice and right to travel abroad, as well as the social reality that millions of Indians go abroad for work, a division bench of Justices Alexander Thomas and CS Sudha held that bail pleas moved by accused when they are abroad is not a sufficient ground to make the plea non-maintainable. ."Hence, by cumulative understanding of the dictum laid down by the Constitution Bench verdicts of the Apex Court in decisions as in Gurbaksh Singh’s case and Sushila Aggarwal’s case, which emphasizes on leaning against over infusion of restrictions on the scope and ambit of Sec.438 and also viewing Sec.438 Cr.P.C. from the prism of procedure established by law envisaged by Art.21 as well as from the perspective of the Right to access to justice for an accused involved in a non bailable offence in his endeavor to defend his personal liberty, and also taking into account that the right to travel abroad is a fundamental right and also taking into account the social reality that lakhs of individuals from the state and other parts of the Country are settled, by way of employment, etc., in various foreign countries and also the scenario of travelling abroad by individuals for various other purposes, it is only to be held that the mere fact that an accused happens to be in a foreign country, at the time he institutes an application for pre-arrest bail under Sec.438 Cr.P.C., will not be a ground to hold that such an applicant cannot legally maintain his plea for pre-arrest bail," the judgment stated..The division bench's judgment came on two cases that were referred to it by two different single-judges of the Court after they took diametrically opposite views on whether an application for anticipatory bail moved by an accused who is abroad, is maintainable..Division bench of Kerala High Court to decide on maintainability of anticipatory bail plea moved by accused who is abroad.The division bench identified four questions that needed to be answered and in a detailed judgment, the bench first went through the arguments made by all the counsel involved, including the amici curiae appointed by it. It then analysed the law laid down in several judgments of the Supreme Court that were relevant to the issues to be considered..The result of this exercise was summarised below:Since denial of bail amounts to deprivation of personal liberty of a person who is only an accused and presumed to be innocent, courts should lean against imposition of unnecessary restrictions on the scope and ambit of Section 438, especially when no such restrictions have been imposed by the legislature;The beneficial provision contained in Section 438 CrPC must be saved, not jettisoned, in order to meet the challenge of Article 21 (right to life) of the Constitution;In the light of the broad interpretation of the word “life”, the right to travel abroad stands recognized as part of and parcel of Article 21;The right to access justice is a facet of Article 21 as well as Article 14 which guarantees equality before the law to not just citizens, but also to non-citizens..The four questions identified by the bench were answered as follows:.Q1. In light of a citizen's fundamental right to have access to a court of law and the fundamental right to travel abroad, apart from the directions in Sushila Aggarwal's case, is the presence of the petitioner inside the country mandatory, at the time of filing an application under Section 438 CrPC?Answer: The bench took note of the social fact and reality that lakhs of individuals from Kerala and other States in India are gainfully employed in other countries, with a large bulk of ex-pat Keralites being employed in the Gulf countries.It also noted from the provisions of the Kerala High Court Rules and the Criminal Rules of Practice (Kerala) that in a case where the accused is abroad, like any other accused who is in India, he is also entitled to engage a counsel of his choice through a memo of appearance and not necessarily by execution and filing of vakalath.These aspects coupled with the position of law laid down in the Supreme Court judgments that it had examined, led the bench to conclude that merely because an accused is in another country when he files an anticipatory bail plea, does not automatically make the plea non-maintainable..Questions 2 and 3 were answered simultaneously.Q2. If a person went abroad after knowing that he is an accused in a non-bailable offence and thereafter, files a bail application under Section 438 CrPC, should the bail court entertain it?Q3. If a person went abroad after knowing that he is an accused in a non-bailable offence and thereafter, files a bail application, is he entitled for interim bail, as per Section 248(1) CrPC?Answer: The division bench said that the answers to these two questions are essentially linked to the factual premises stated in them. Such factually premised issues can be determined only when understood in the context of the actual facts and circumstances of the case and not in the abstract, the bench opined.So, while considering the grant of anticipatory bail and interim anticipatory bail, courts must examine general aspects such as whether the accused was already abroad when the crime was registered, and if not, did he go abroad for employment or other bona fide reasons..Q4. Does a bail court have any restrictions while passing orders restraining the Police from arresting the accused, without interim bail orders, as per Section 438(1) CrPC?Answer: The bench noted that as per precedents, in general it is not right or legally correct for courts to pass orders or interim orders restraining the arrest of the accused. However, in appropriate cases, courts will have the discretionary power to issue interim bail order/ad-interim bail order if the court is convinced that it is so warranted, pending consideration of the main bail application. The bench emphasised that while considering passing of such interim bail orders, the Court should ensure strict conformity with the requirements of Section 438.."While concluding, we would only venture to observe that the hard and difficult task for the Bail Court, in the matter of finding the right path for proper and legally correct exercise of discretion under Sec.438(1), no generalized rules of universal application or formulae in straitjacket can be envisaged or contemplated. The Courts should grapple with the facts of each case and identify as to how discretion is to be exercised in a sound and wise manner... We would also hasten to further add that there cannot be any fixed formulae for finding out of the right path in a given case and the Courts should be guided by the underlying principles of adopting wise and prudent exercise of discretion," the bench said in conclusion..As far the two cases referred to it by the single-judges were concerned, the division bench concurred with them and made the interim anticipatory bail granted in the reference orders, absolute. .Advocates Tom Jose Padinjarekara and Suman Chakravarthy assisted the Court as amici curiae. They were assisted by advocate Saipooka. Additional Public Prosecutor SU Nazar appeared for the State..[Read Judgment]