Shivani Thakur
Published on: June 29, 2022, at 19:52 IST
Justice P.V. Kunhikrishnan of the Kerala High Court has referred the legal issues of whether a directive not to arrest an accused can be issued without passing an interim bail to a Division Bench (DB) for decision. This is because he disagrees with the legal opinions expressed by a Single judge in the actor-producer Vijay Babu’s anticipatory bail case.
The Court has also addressed the question of whether or not an anticipatory bail petition made by an accused who travels overseas following a crime against him or her can be considered, as well as whether or not such an accused can be granted interim bail.
The Court observed, “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.”
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 stated that because Anu Mathew, an accused in a POCSO case, filed her anticipatory bail motion from Kuwait, it had been denied.
When it was brought to the Court’s attention that the actor had been granted anticipatory bail, the court was forced to reexamine the case and issue interim anticipatory bail.