IMPORTANT POINT
The court emphasized the need for clear procedures in pre-arrest bail applications, especially for accused residing abroad, to prevent suppression of facts.

ORDER :

The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (in short, ‘BNSS’), for an order of pre-arrest bail.

2. The applicants are the accused Nos.1 & 2 in Crime No.493/2024 of the Kannur Town Police Station, which is registered against four accused persons for allegedly committing the offence under Section 420 of the Indian Penal Code, 1860.

3. The crux of the prosecution case, is that on 26.06.2021, the first accused had published an advertisement in the social media, offering high profit on investments if made in the company owned by the accused Nos.3 & 4. Accordingly, the first accused got acquainted with the de-facto complainant, and he invested Rs.43,59,950/- during the period from 04.06.2022 to 03.10.2022 in the bank accounts of the accused. However, the accused failed to pay any profit and refused to return the capital. Thus, the accused have committed the above offences.

4. Heard; Smt.Mumthas Kakkat Valappil, the learned counsel appearing for the applicant; Smt. Seetha S., the learned Senior Public Prosecutor and Sri. P.T. Abhilash the learned counsel appearing for the de-facto complainant/intervenor.

5. The learned Public Prosecutor opposed the application. She submitted that the second applicant is still abroad. Similarly, the accused Nos.3 & 4 in the instant crime, who are the accused in Crime No.9/2024 of the CBCID, Kannur, had moved this Court for a similar relief in Crime No.9/2024. The said application was dismissed by this Court by Annexure-R2(A) order dated 11.07.2024 in B.A.No.4392/2024. But, the accused Nos.3 & 4 had suppressed the fact that they were abroad and they are still at large. In Anu Mathew v. State of Kerala, 2023 (3) KHC 151, a Division Bench of this Court has categorically laid down the principles for filing an application for pre-arrest bail by the accused who are abroad. It is without adhering to the guidelines laid down in the said decision, that the accused Nos.3 & 4 had filed the earlier application. Now, the second applicant is also abroad. Although he has stated that he will come down to India in July, 2024, he has not returned. Therefore, the application may be dismissed.

6. In Anu Mathew’s case (supra), this Court has elaborately laid down the guidelines to be followed while considering an application for anticipatory bail, when an accused is abroad.

7. This Court is coming across numerous applications being filed for orders of pre-arrest bail, where the fact that the accused are abroad is deliberately suppressed. The Investigating Officers may also not be in a position to ascertain as to whether the accused is in India or abroad. If the application is dismissed, the accused refuse to come down to India. Many a times it is only when a second application is filed, the fact that the accused is abroad is revealed.

8. On a conspectus of the above factors, I am of the firm view that a procedure is to be laid down in all pre-arrest bail applications, by incorporating a compulsory field in the bail application module to ascertain from the applicant is in India or abroad, similar to the mandatory field pertaining to the filing of earlier bail applications as laid down by the Hon'ble Supreme Court in Kusha Duruka v. State of Odisha, 2024 (1) KHC 389).

9. Consequently, I direct the Registry to place this bail application before the Hon'ble the Acting Chief Justice to consider whether the matter is to be placed before the Division Bench hearing matters relating to the Practice and Procedure in Judicial and Administrative Sections of the High Court, to lay down the practice and procedure to be incorporated in the bail application module.