Point of Law: Sec.438 of Cr.P.C reads as Direction for grant of bail to person apprehending arrest.

ORDER :

Alexander Thomas, J.

“....the issue (of bail) is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”

-Justice V R Krishna Iyer in G. Narasimhulu v. P.P., [(1978) 1 SCC 240, p. 242, para 1]

The afore captioned applications have been instituted under Sec.438 of the Code of Criminal Procedure, 1973, seeking for grant of anticipatory bail to the applicants concerned, in respect to their involvement as accused persons in the crimes concerned.

2. These bail applications have come up for consideration before the Division Bench pursuant to the reference orders made by the Single Benches concerned, as per order dated 27.6.2022 in B.A.No.4421/2022 and order dated 28.6.2022 in B.A.No.4983/2022, whereby the cases have been referred to the Division Bench in exercise of the powers under the proviso to Sec.3 of the Kerala High Court Act, 1958. The sole issue has been referred for determination in B.A.No.4983/2022 and 3 issues have been referred for determination before the Division Bench in B.A.No.4421/2022. The said 4 issues in referred to the Division Bench for determination are as follows:

(i) Whether, in the light of the fundamental right of a citizen, to have access to a court of law and the fundamental right of a citizen to travel abroad, apart from the directions in Sushila Aggarwal's case supra [(2020) 5 SCC 1], the presence of the petitioner inside the country is mandatory, at the time of filing an application under Sec.438 Cr.P.C ?

(ii) 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 files application under Sec.438 Cr.P.C., whether the bail court should entertain such an application ?

(iii) when an accused went abroad, after knowing that he is an accused in a non-bailable offence and thereafter, files a bail application before this Court, whether he is entitled for interim bail, as per Sec.438 (1) Cr.P.C ?

(iv) whether bail court has no restriction to pass orders restraining the Police in arresting the accused, without interim bail orders, as per Sec.438 (1) Cr.P.C. ?

It is on this basis that the aforesaid 2 anticipatory bail applications have come up for consideration before this Division Bench.

3. Earlier, with the consent of both sides, we had appointed Sri. Tom Jose Padinjarekkara, learned Advocate [formerly, Addl. Director General of Prosecution and Addl. State Prosecutor of this Court] and Sri. Suman Chakravarthy, learned Advocate [formerly, Senior Government Pleader-cum-Public Prosecutor of this Court] as Amici Curiae in these cases and it was also ordered that Smt. Saipooja, learned Advocate will assist both the Amici Curiae in these cases.

4. Heard Sri. E.D. George, learned counsel appearing for the sole applicant in B.A.No.4421/2022, Sri. P.A. Abdul Jabbar, learned counsel appearing for the sole applicant in B.A.No.4983/2022, Sri. S.U. Nazar, learned Prosecutor (Senior Government Pleader (Criminal)), Sri. Tom Jose Padinjarekkara, learned Amicus Curiae and Sri. Suman Chakravarthy, learned Amicus Curiae, both instructed and ably assisted by Smt. Saipooja, learned Advocate.

5. We have extensively heard the learned Advocates concerned, including the learned Amici Curiae and hearing has been conducted on various days. We have considered the submissions of the parties and the learned Amici Curiae and have also considered the various rulings cited by them. There is no necessity for us to get into the details of the submissions and we will deal with those issues hereinafter. Initially, we will be referring to the recommendations of the 41st Law Commission Report, which led to the enactment of Sec.438 Cr.P.C and then we will be dealing with various relevant case laws on the subject and the reference issues and the conclusions thereof. Then we will deal with the facts