Disagreeing with the legal views taken by a single judge in the actor-producer Vijay Babu's anticipatory bail case, Justice P.V. Kunhikrishnan of the Kerala High Court has referred to a Division Bench (DB) for deciding the legal questions whether a directive not to arrest an accused can be issued without passing an interim bail. The court has also referred whether an anticipatory bail petition filed by an accused who goes abroad after registration of a crime against him/her can be entertained and if an interim bail can be granted to such an accused.
Justice Kunhikrishnan, while dealing with an anticipatory bail petition filed by an accused from Kuwait, observed that in a situation where the accused files an anticipatory bail petition from abroad after registration of the crime, "the court had got ample powers to refuse bail because the power under Section 438 of CrPC (criminal procedure code) 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 is my considered opinion. It is the duty of the prosecuting agency to book him".
Taking exception to Justice Bechu Kurian Thomas’ interim order directing the police not to arrest Vijay Babu on his return from abroad, Justice Kunhikrishnan observed that ”a reading of Section 438 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). Moreover, as per the first proviso to Section 438, the police were allowed to arrest a person if there is no interim bail granted by the court, even when a bail application was filed.”
The court also observed that yet another single judge had earlier observed in the Shafi S.M. case that a bail application under Section 438 need not be entertained when the petitioner files the petition sitting abroad. The single judge who passed the order on the actor-producer’s petition ought not to have decided the matter without referring the same to the Division Bench in view of the earlier decision in the Shafi case.
The court noted that it had dismissed the anticipatory bail petition filed by Anu Mathew, an accused in a POCSO case as she filed it from Kuwait. The court had to reconsider the case and grant interim anticipatory bail when it was brought to the notice of the court about the grant of anticipatory bail to the actor.
