KOCHI: Disagreeing with another High Court single judge’s finding -- while granting actor-producer Vijay Babu bail in a rape case -- that an application for pre-arrest bail can be filed even by a person residing outside the country, Justice P V Kunhikrishnan on Monday said the legality of the bail order has to be decided by a Division Bench.
“This court has got ample powers to refuse bail because the power under Section 438 CrPC itself is a discretionary jurisdiction. Such persons need not be invited to the country by a court of law invoking the powers of interim bail under section 438 CrPC is my considered opinion,” Justice Kunhikrishnan said.
The court then directed the registry to place the matter before the Chief Justice to pass appropriate orders. The Division Bench has to decide the legal question on issuing a directive not to arrest an accused and also on entertaining the anticipatory bail plea of an accused who had gone abroad after the registration of a crime, Justice Kunhikrishnan said.
He issued the order while considering an anticipatory bail plea by Tiruvalla native Anu Mathew, who is working as a teacher in Kuwait and has been charged under the Pocso Act. Deferring with Justice Bechu Kurian Thomas who had directed the police not to arrest Vijay on his return from abroad,
Justice Kunhikrishnan observed: “I am in respectful disagreement with the observation of the judge. When in Shafi’s case this court had clearly stated that an application under Section 438 of CrPC cannot be filed before this court by an accused sitting in a foreign country, the Single Judge ought not have decided the matter without referring the same to the Division Bench.”
A reading of section 438 CrPC will show that the court has no power to restrict the arrest of an accused during investigation, Justice Kunhikrishnan said. “If the court feels that an accused deserves pre-arrest bail, an interim bail can be granted under Section 438 (1) of CrPC. If,” he observed.