Granting Anticipatory Bail To Persons Who Flee Country Being Aware Of FIR Registered Against Them Is Not Proper: Kerala High Court

The Kerala High Court recently held that it may not be appropriate to grant anticipatory bail in circumstances where the accused fled the country being fully aware of a non-bailable offence registered against him/her.

The court also observed that while considering a bail application filed by an accused who is abroad, courts must consider imposing the condition that the accused shall be available for interrogation by a Police Officer, as and when required and that the accused shall not leave India without the previous permission of the Court. 

A division bench of Justice Alexander Thomas and Justice C S Sudha observed:

“if such an accused had absconded from India and had gone abroad knowing fully well about the registration of a crime in respect of a non bailable offence, then thereafter, though he may technically have the locus standi to maintain a pre-arrest bail plea, but if as a matter of fact, the Court is convinced that he has absconded and fled away from the law enforcement agencies, etc., then it may not be right and proper exercise of jurisdiction to grant interim bail to such an accused who is abroad,” the court observed. 

In view of the reference made by single benches of the Court, the division bench of the court was considering the question of whether the presence of the accused inside the country is mandatory while applying for bail under Section 438 of the CrPC. The court was also posed with the question of whether the court should entertain a bail application by an accused who absconded from India after knowing about the registration of the non bailable offence against him/her. The court also considered whether such a person would be entitled to interim bail under Section 438 (1) of Cr.P.C.

The court observed that in numerous instances, the person accused of a crime may have been abroad at the time the crime was registered, which would indicate that they did not intend to avoid legal consequences. Even if they left the country after the crime was reported, they may argue that they had a valid reason for leaving due to work obligations and that they plan to return to India promptly to cooperate with the investigation and trial. The court should carefully consider and evaluate the accused's factual statements, determining whether they are ‘genuine and bondafide’ or merely an attempt to deceive the court, the Court noted. Courts should also be mindful that people often travel abroad for work, particularly in countries with strict labour laws like in the Gulf region, and failing to report to work could result in loss of employment.

“The courts should always have the “third eye”, to discern the genuineness and bonafides of such pleas, bearing in mind that, the serious issues of personal of liberty are entailed in consideration of such bail pleas. So also, the Courts should intensely apply its mind as to whether the attempt of the accused who is abroad, is to buy time and stultify the investigation and the trial.”

If the court decides to grant anticipatory bail to an accused who is abroad when the application is filed, it must carefully consider setting conditions to regulate the grant of bail, as outlined in Section 438(2) of the Criminal Procedure Code, the Court observed. Section 438(2) specifies several conditions to be imposed on the accused, such as making themselves available for police interrogation as needed [condition (i)] and not leaving India without the court's permission [condition (iii)]. These conditions aim to regulate the grant of bail to ensure that the accused will cooperate with the investigation and trial and not flee the country.

“Since the cardinal purpose of bail is the security for appearance of the accused persons, on which he is released pending trial or investigation, etc. The courts have an obligation to consider the imposition of appropriate conditions, especially where the accused is abroad at the time of making the application, to consider as to whether conditions as in clauses (i), (iii), etc., are to be imposed.”, the court observed

The Court also added that courts may also include a condition to regulate the grant of interim bail, an ancillary power granted to it under Section 438(1), by requiring the accused to return to India and cooperate with the investigation within a specific and reasonable time frame. If, during the consideration of the main application, the court finds that the accused has failed to comply with this condition, and the court is convinced that the accused lacks bondafides, then the court can choose to dismiss the main application and also vacate the order granting interim bail. 

“this option can be a basis for the court to be assured that the bail granted on interim basis is not abused or misused by the accused and to ensure the effectuation of the condition that the accused should be in India, as envisaged in Clause (iii) of Sec.438(2).”

The Court also observed that if the court considering the bail application is convinced that if the accused had fled from India and traveled overseas after being fully aware of a non-bailable offence registered against them, and then files for bail under Section 438 of the Cr.P.C. while still abroad, it may not be appropriate to grant bail in such circumstances. However, this does not imply that the court lacks jurisdiction to consider a bail application under Section 438 merely because the accused or applicant is out of the country at the time of filing, the court observed.

However, the court warned that there was no universal formula for grant of bail in cases where the applicant is abroad and that in such cases, judicial discretion must exercised 'in a sound and wise manner'

Needless to say, there is no question of this Court or any court for that matter laying down any general rules of universal application, which would more often than not fall in straitjackets, which is highly undesirable and goes against the essence of the jurisprudential idea of judicial discretion and duty of Judges.

The court was considering two bail applications referred to it by single benches.

Adv. E.D. George appeared for the accused in the first bail application, Adv. P.A. Abdul Jabbar appeared for the accused in the second bail application, Public Prosecutor Adv. S.U. Nazar appeared for the State. The court had also appointed Adv. Tom Jose Padinjarekkara and Adv. Suman Chakravarthy as Amicus Curiae in the matter and Adv. Saipooja was appointed to assist them.

The accused in the first bail application was accused of morphing photos of a minor girl and uploading it on a pornographic site and also sending threatening messages and defaming the minor and her mother. The court had granted her interim bail as she was willing to come to India and cooperate with the investigation, even though she was in Kuwait, before and after the alleged commission of the offence. The Court made the interim bail granted to her absolute, observing that “the applicant/accused has not shown any proclivity or the remotest intention to abscond or flee away from the long arms of the law.”

In the second application the accused is alleged to have committed the offence under Section 498A IPC, for having demanded dowry from his wife and for having treated her with cruelty. The accused who was in Saudi Arabia at the time of registration of the FIR, specifically undertook to come back to India to cooperate with the investigation and followed through. In light of the same, the court made the interim bail granted to him absolute. 

Case Title: Anu Mathew V State of Kerala

Citation: 2023 LiveLaw (Ker) 198

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