Legally Permissible For Court To Direct/Permit Accused To Surrender While Dismissing Anticipatory Bail Plea: Kerala High Court

The Kerala High Court recently observed that while dismissing an application for anticipatory bail, it is legally permissible for the court to direct/permit the accused to surrender before the investigating officer or the jurisdictional court within a specific period.

The Bench of Justice R. Narayana Pisharadi referred to Nathu Singh vs. State of Uttar Pradesh LL 2021 SC 261, wherein it was observed that when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the High Court has no power to ensure justice.

The Supreme Court had further held in this case that such an order (directing the accused to surrender) must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority.

"The Court must take into account the statutory scheme under Section 438, Cr.P.C., particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant," observed the Supreme Court.

High Courts Can Grant Protection To Accused While Dismissing Anticipatory Bail Plea In Exceptional Circumstances: Supreme Court

The case before the Court

The petitioner was the Senior Clerk in the Office of the Scheduled Caste Development (SCD), Thiruvananthapuram Corporation. He was in charge of accepting the applications for receiving monetary relief under various schemes formulated by the Government for improving the social conditions of persons who belong to scheduled castes and processing the same.

Pursuant to a conspiracy hatched by the accused persons, the petitioner incorporated the bank account numbers of accused 2 to 11 (relatives/other staff members) in forged applications, and using such applications, he got transferred about seventy lakhs rupees to their bank accounts.

Court's observation

Noting that a huge amount of public money, which was intended to be utilized for the uplifting of persons who belong to scheduled caste was embezzled by the petitioner, the Court refused to grant him anticipatory bail.

However, the counsel for the petitioner submitted that the petitioner was ready to surrender before the investigating officer and thus, the Court inquired into the question as to whether a person could be directed to surrender in such circumstances.

At the outset, the Court observed that in Anthru v. Sub Inspector of Police : (2015) 4 KHC 61, it has been held by the Kerala High Court that the direction to surrender militates against the concept of 'anticipatory bail' and that when Court dismisses the application for anticipatory bail, there is no justification at all to direct the accused to surrender before the Magistrate or the investigating officer.

However, taking into account the 2021 ruling of the Supreme Court, the Court observed thus:

"The principles laid down by this Court in Anthru (supra) and followed by this Court in Raveendran v. State of Kerala (2018 (1) KHC 620)...cannot be considered as good law in the light of the dictum laid down by the Apex Court in Nathu Singh."

Further, the Court noted thus:

"In the instant case, the request made by the petitioner to permit him to surrender before the investigating officer can be favorably considered. The case against the accused was registered as early as 08.04.2021. The investigating officer could not yet arrest the petitioner. If the petitioner is permitted to surrender before the investigating officer by granting him a short time, it would only facilitate the investigation."

Consequently, the prayer for granting pre-arrest bail to the petitioner was rejected and the petitioner was directed to surrender before the investigating officer within a period of seven days.

Case title - RAHUL R.U. v. STATE OF KERALA

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