KOCHI: Justice PV Kunhikrishnan dissented from another single judge's finding that an application for pre-arrest bail can be filed even by a person residing outside the country. This is contrary to Justice Bechu Kurian Thomas's order recently to grant pre-arrest bail to actor-producer Vijay Babu in a rape case while he was abroad.
"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," held Justice PV Kunhikrishnan and added that the matter has to be decided by a Division Bench of this Court. Then the court directed the registry to place the matter before Chief Justice for passing appropriate orders.
The matter was referred to a Division Bench for deciding the legal question on issuing a directive not to arrest an accused and also on entertaining an anticipatory bail plea by an accused who goes abroad after registration of a crime against a person.
Justice Kunhikrishnan issued the order while considering an anticipatory bail plea of Anu Mathew of Thiruvalla, working as a teacher in Kuwait and an accused in the offences under the Protection of Children from Sexual Offence Act (POCSO).
Deferring Justice Bechu Kurian Thomas who had directed the police not to arrest actor-producer, Vijay Babu, on his return from abroad, Justice Kunhikrishnan observed that "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 CrPC cannot be filed before this Court by an accused sitting in a foreign country, the Single Judge ought not to have decided the matter without referring to the same to the Division Bench."
"A reading of section 438 CrPC will show that there is no power to the court to restrict the arrest of an accused during the investigation. If the court feels that an accused deserves pre-arrest bail, an interim bail can be granted under Section 438 (1) CrPC. If the principle in Sushila Aggarwal’s case is applied, the court has no jurisdiction to restrain the Police in arresting a person except to order interim bail because no such power is there in Section 438 CrPC," observed Justice Kunhikrishnan.
Moreover, as per the first proviso to Section 438 CrPC, the Police are allowed to arrest a person if there is no interim bail granted by the court even if a bail application is filed. If an accused in a case left India after knowing that a case with grievous offences is registered against him and filing a bail application before the High Court after leaving India is not entitled to an order not to arrest especially when there is no such power as per Section 438 CrPC. Even interim bail is not deserving of such persons because the jurisdiction under Section 438 Cr.P.C. is discretionary.
The court granted interim bail to the petitioner till the disposal of the bail application.