Division bench of Kerala High Court to decide on maintainability of anticipatory bail plea moved by accused who is abroad

A single-judge of the Kerala High Court on Monday referred to a division bench the question of whether an application for anticipatory bail should be entertained by the court when the accused is outside India [Anu Mathew v State of Kerala]..Justice PV Kunhikrishnan opined that anticipatory bail pleas moved by persons outside the country, possibly absconding, need not be entertained by the Court under the discretionary powers conferred to it by Section 438 of the Code of Criminal Procedure (CrPC)."I do not think that the direction not to entertain a bail application in a situation where the accused filed a bail application sitting in a foreign country and that also absconding after the registration of the case against him and further openly challenging the law of the land, with the knowledge of the registration of the case against him is against the dictum laid down in Sushila Aggarwal’s case In such situation, this Court has got ample powers to refuse bail because the power under Section 438 CrPC itself is a discretionary jurisdiction Such persons need not be invited to the country by a court of law invoking the powers of interim bail under section 438 CrPC is my considered opinion. It is the duty of the prosecuting agency to book him," the Court said. .Since a different view was taken by another single-judge of the Court, Justice Bechu Kurian Thomas, in the recent case of Vijay Babu v State of Kerala, the Court referred the following questions for consideration by a division bench.If a person who is an accused in a case absconded from India and went abroad after fully knowing about the registration of a non-bailable offence against him, and thereafter if he file bail application under Section 438 CrPC, whether the bail court should entertain such a bail application?When an accused went abroad, after knowing that he is an accused in a non-bailable offence, and thereafter filing a bail application before this Court, whether he is entitled interim bail as per Section 438(1) CrPC?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) CrPC?.The Court was considering an anticipatory bail plea moved by the accused who was abroad. Justice Kunhikrishnan differed from the opinion expressed by Justice Thomas in the order granting pre-arrest bail to Malayalam actor-producer Vijay Babu who is accused of raping a young actress. The prosecution's primary argument was regarding the maintainability of an anticipatory bail application which was moved on behalf of someone who left the country after the case was registered against him and only returned after he was granted interim protection from arrest by the Court. In Vijay Babu's case, the Court had opined that Section 438 CrPC does not contain such a restrictive mandate as a person can apprehend arrest even when he is outside the country for an offence that occurred in India.It had further opined that reading such a restriction into Section 438 would go against the dictum laid by the Supreme Court in Sushila Aggarwal v State (NCT of Delhi).Justice Kunhikrishnan did not agree with this view of the Court, especially since another bench of the Court, in its 2021 judgement Shafi SM v State of Kerala & Anr, had held that a bail application under Section 438 CrPC need not be entertained by when the petitioner is "sitting in an armchair in a foreign country"..Justice Kunhikrishnan also disagreed with the grant of interim protection from arrest. He opined that the Court has no power under Section 438 to restrict the arrest of an accused during investigation, only to grant interim bail under Section 438(1)."If an accused in a case left India after knowing that a case with grievous offences is registered against him and filing a bail application before the High Court after leaving India is not entitled an order not to arrest especially when there is no such power as per Section 438 Cr.P.C. Even interim bail is not deserving to such persons because the jurisdiction under Section 438 Cr.P.C. is discretionary," the reference order stated. .In the instant case, the Court noted that the accused had left the country before the case was filed and had returned to India over the course of the hearings. Therefore, it granted interim bail under Section 438(1) of the CrPC to the accused but referred the larger question, on the maintainability of anticipatory bail pleas when the accused may be absconding, to a division bench of the Court. .[Read Order]