Failure To Mention That Person Seeking Anticipatory Bail Is Abroad At Time Of Making Application Is "Suppression Of Materials Fact": Kerala HC

The matter was placed before the Division Bench comprising Justice Anil K. Narendran and Justice P. G. Ajithkumar by the Registry on the directions of the Acting Chief Justice.

A Single Bench of the Court had referred a bail matter to the Registry saying that a large number of people are filing anticipatory bail by deliberately suppressing the fact that they are abroad. The Court added that in these cases the investigating officers may not be able to ascertain whether the accused is in India or abroad. If the bail is denied in such a case, the accused continues to stay abroad. Many times, the fact that the accused is abroad is revealed only when the second bail application is filed.

The Single Bench referred the matter to the Registry considering the decision of the Court in Anu Mathew v State of Kerala (2023) where a 2 Judge Bench held that though an accused can file for anticipatory bail while he is abroad, it may not be proper to grant interim bail if the court is convinced that he absconded and fled away from the law enforcement agencies. It was further held in that case that the Court may see whether the accused was already abroad when the crime was registered. The Court added that if he went abroad after registration of the crime, the Court can look into whether he had bona fide gone abroad in view of his employment, professional compulsions etc.

The Court in the instant case noted that it is necessary to know whether a person is abroad or in India to correctly impose conditions under Section 438(2)(i) & 438(2)(iii) of Code of Criminal Procedure (Cr.P.C) or corresponding Section 482(2)(i) & Section 482(2)(iii) of Bharatiya Nagarik Suraksha Sanhita (BNSS). These conditions which the Court may impose while granting anticipatory bail are that a person should make himself available for police interrogation as and when required, and that he should not go abroad without the permission of the Court.

“Therefore, where the accused person is abroad at the time of making an application for pre-arrest bail under sub – section (1) of Section 482 of BNSS, the said material fact that possesses the potential to influence the decision – making process of the court and the imposition of condition in clauses (i), (iii) etc. of sub-section (2) of Section 482 of BNSS has to be disclosed in such application, failing which it would amount to suppression of material facts from the notice of the court.”

The Court held that an accused is abroad while filing an anticipatory bail petition is a material fact and not disclosing that in the petition can be considered as suppressing material facts of the case.

Case Number: JPP No 4 of 2024

Case Title: Suo Motu Proceedings Initiated by High Court v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 619

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