The Kerala High Court has held that an accusesd can secure anticipatory bail from abroad and absence from jurisdictional area is no ground to deprive someone of their legal rights.
The single-judge bench of Justice Bechu Kurian Thomas however clarified that the observation is only regard to the interim protection from arrest.
The Court was deciding on the bail petition of famous actor Vijay Babu in a Rape Case.
The learned ADG of Prosecution contended at the outset that petitioner is not in the country, disentitling consideration of the application. He however submitted that notwithstanding the aforementioned disentitlement, this Court may hear the bail application itself on merits, instead of considering the present prayer for grant of an interim protection.
The Learned Counsel fo the petitioner on the other hand argued that though the petitioner is presently outside the Country he is willing to come down to Kerala, within the jurisdiction of this Court and face investigation.
However, due to the threat of immediate arrest raised by the investigation, he fears deprivation of his liberty without getting an opportunity to have the application for pre-arrest bail considered on merits,he averred.
He further submitted that the petitioner had even booked his tickets to come down to India however, without the protection from arrest he feared deprivation of his liberty from the airport itself, and therefore petitioner was compelled to postpone his travel. It was argued that if the present application is allowed, the petitioner shall be present in the jurisdiction within 24 hrs.
The learned ADG of Prosecution, on the other hand submitted that petitioner had filed the bail application after fleeing the country and his intention was to remain outside the jurisdiction, elusive to the investigation. However, due to the steps initiated by the police for impounding his passport and other lookout notices, petitioner has now changed his stance and is expressing willingness to come within the jurisdiction of this Court, which cannot be taken at its face value as a bonafide step, he contended.
He pointed out absence of petitioner's whereabouts in the present application and cited High Court precendents to submit that petitioner's presence outside the country does not entitle him to maintain this very application itself.
Learned Counsel appearing for the victim submitted that the petitioner has not been bona fide in his application and had not even divulged his whereabouts at the time of filing the application.
The Court upon listening to the parties, in its analysis dwelled on the purpose of interim protection. It referred to Sushila Aggarwal & Ors. Vs. State, 2018 Latest Caselaw 381 SC, wherein a Constitution Bench of the Supreme Court had considered various principles relating to the grant of anticipatory bail. It was observed that the paramount right of every individual protected under Article 21 of the Constitution of India, can be deprived only by procedure established by law and that Section 438 is one such procedure which the legislature has enacted and that courts should lean against imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature.
In view of the above, the Court observed that merely because the petitioner is outside the country, the same by itself cannot deprive him of his right to have his application for anticipatory bail considered by this Court.
"The decision referred to in Souda Beevi's case (supra) can be said to be impliedly overruled and decision in S.M.Shaffi's case (supra) did not take notice of the judgment in Sushila Agarwal’s case and therefore, could be regarded as judgment sub silentio. However, I clarify that the above observations are made only for considering the grant of interim protection from arrest."
Reamking that the essential requirement of every investigation is that the accused must be within its control for the purpose of carrying out an effective and fair investigation, the Court noted that it is not only in the interest of the petitioner , but also in the interest of the victim as well as the investigation, that the petitioner be protected from arrest for a minimum period of time, to enable him to submit to the territorial jurisdiction of this Court without further delay.
"Thus when the petitioner himself expresses his willingness to come within the jurisdiction of this Court and the investigation team, but expresses his apprehension of arrest from the Airport itself, I am of the view that the said circumstance necessitates the grant of interim protection from arrest, atleast for a limited period of time. I hasten to add that the intention of the police to arrest the petitioner, from the Airport itself, was reflected in the arguments advanced by the learned Additional General of Prosecution."
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