The Kerala High Court recently comprising of a bench of Justice Becky Kurian Joseph granted interim anticipatory bail to actress Vijay Babu in a rape case and observed that the accused being abroad does not disentitle him from getting his anticipatory bail plea considered. (Vijay Babu v. State of Kerala & Anr.)
The bench clarified that the observations were not on the merits of the case but only an anticipatory bail plea.
Facts of the case
The Petitioner in the present case sought pre-arrest bail through this bail application. Petitioner also seeks an interim protection from arrest pending consideration of the bail application.
The petitioner was arrayed as an accused in case alleging offence under 376(2) (n), 506 and section 323 of the Indian Penal Code 1860. The learned Counsel submitted that though petitioner was 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. In such circumstances, petitioner pleads for an interim protection from arrest.
The learned counsel for the petitioner, further, submitted that petitioner had even booked his tickets to come down to India on 30.05.2022, 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 urged that petitioner is ready to be within the jurisdiction of this Court within 24 hours if protection is granted.
The learned Additional Director General of Prosecution, contended 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.
Contention of the Parties
Sri.Gracious Kuriakose, the learned Additional Director General 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 invited the attention of the Court to the absence of pleadings in the bail application relating to the whereabouts of the petitioner. The learned Additional Director General of Prosecution, also relied upon the decision of this Court in Souda Beevi v. Sub Inspector of Police & Others 2011 (4) KLT 52, as well as S.M.Shaffi v. State of Kerala 2020 (4) KHC 510 and submitted that, petitioner's presence outside the country does not entitle him to maintain this very application itself.
Sri.M.Rajesh, the 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.
Court's observations and Judgment
The bench referred to the case of Sushila Aggarwal and Others v. State (NCT of Delhi) and another [(2020) 5 SCC 1], 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.
The bench taking note of the above remarked, "Bearing in mind the aforesaid principles laid down by the Supreme Court, I am of the view that, for the present, 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."
The bench allowing the bail plea remarked, "Petitioner has also produced a copy of the confirmed ticket for travel from Dubai to Kochi. 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. Therefore the need for interim protection sought for by the petitioner is justified.
In view of the above, 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. Accordingly, I direct the respondents not to arrest the petitioner for a limited period as mentioned below."
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