DATE OF JUDGEMENT:
27th June, 2022
JUDGES:
Justice P.V.Kunhikrishnan
PARTIES:
Anu Mathew
State of Kerala
SUBJECT
In the present case, the Court disagreed with the judgment of the Vijay Babu case and held that a person, who absconded to a foreign country upon being conscious of the fact that a case has been registered against him, cannot be granted bail while sitting in a foreign country.
OVERVIEW
- The petitioner was charged under various Sections under Protection of Children from Sexual Offence Act, 2012, Indecent Representation of Women (Prohibition) Act, 1986, IPC and Information Technology Act, 2000.
- The instant case related to the second bail application filed by the petitioner. The earlier petition was dismissed on the ground that the petitioner was not present in India at the time of hearing.
- The petitioner was in Kuwait when the matter came up for hearing.
- The Court had relied on the judgment of Shafi S.M. v. State of Kerala and Anther [2020 (4) KHC 510], while dismissing the bail application.
- The Court had held in the Shafi case that the jurisdiction of the Court under Section 438 is discretionary and bail cannot be claimed while sitting in a foreign country.
- However, the Court's attention was drawn to the judgment of Vijay Babu v. State of Kerala which distinguished from Shafi S.M. v. State of Kerala and Another.
RELEVANT PROVISIONS
Code of Criminal Procedure
- Section 438: Direction for grant of bail to person apprehending arrest
JUDGMENT ANALYSIS
- The Court primarily noted the observations made in the Vijay Babu case. In the Vijay Babu case, the Court had held that the Court must not impose restrictions on Section 438. The Court thus held that interim relief could be granted even if the accused is not present in India.
- The Court then referred to the judgment of Peter v. Sara [2006 KHC 1450] in which the Court had highlighted the importance of judicial precedents. The Court had further held that refusal to follow the principle laid down by an equal bench must be in exceptional cases where the decision of the "so clearly and seriously wrong that it cannot logically exist or when it is productive of public hardships or inconvenience".
- The Court observed that if the Bench at the Vijay Babu case disagreed with the decision laid down in the Shafi case, then it must have referred the matter to the Division Bench.
- The Court opined that where the accused has absconded from the country despite being aware of the fact that a complaint has been registered in the country, he cannot be allowed to claim bail while sitting at a foreign country.
- The Court further noted that Section 438 only empowers the Court to provide interim bail to the accused. However, the Court cannot prevent arrest during investigation under the said Section.
- The Court held that due to the difference in opinion of the two Benches, the matter was to be decided by a Division Bench.
- Since, in the instant case, the petitioner was a woman and she was present in India, the Court granted bail to the petition till the disposal of the bail application by a Division Bench.
- The Court noted that neither was there an allegation that the petitioner had left the country upon knowing that a case has been registered against her nor was her bail seriously opposed by the ADGP.
CONCLUSION
Certainly, a person wilfully absconding to a foreign country to avoid arrest cannot be granted bail without returning to the home country. On the other hand, the Parliament has not imposed any restriction on the Court to grant bail under Section 438 to a person present outside the country. The matter would be conclusively decided by the Division Bench.
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