Accused Avoid Arrest For Years On Strength Of Interim Order In Anticipatory Bail Plea, Courts Must Ensure Disposal Within Six Weeks: Kerala HC

Justice A Badharudeen directed the Registrar (Judicial) to ensure posting of anticipatory bail applications where ‘not to arrest’ interim orders were passed before appropriate benches for its timely disposal.

The direction was made after the Court noted hundreds of cases, in which after filing anticipatory bail applications and on getting interim protection ‘not to arrest’ the bail applicants avoided arrest in many cases where very serious offences are alleged to be committed by them. It observed,

"It is disgust to note that in view of the interim order passed by this court ‘not to arrest’, the hands of the Investigating Officer have been chained and therefore, proper investigation of serious crimes, where custodial interrogation, recording of statement of the accused, recovery of weapon-facts, at their instance were curtailed and in such a way the possibility of conviction in serious crimes has been given a go-bye as a result of ineffective investigation."

Court was 'appalled' to note that in crimes involving allegation of offences under Section 376 IPC where the medical examination of the bail applicant/s (accused) to prove the potency is an essential ingredient, final report facilitated acquittal of accused for want of collection of material evidence at the instance of the accused, after he was granted interim protection.

It therefore ordered "the Registrar (Judicial) to ensure posting of anticipatory bail applications, including anticipatory bail applications where 'not to arrest' order is in force, before the bench dealing with the roster to facilitate timely disposal of anticipatory bail applications by this court in obedience to the directions given by the Hon'ble Apex Court Hussain and Another (Supra) and Satender Kumar Antil (Supra), here after without fail.”

The petitioner, a peon of a bank was allegedly accused of misappropriating over five crores of rupees from the bank by using forged documents. He was alleged to have committed offences of forgery, breach of trust and cheating punishable under the IPC.

The petitioner filed anticipatory bail application on February 16, 2021 and he got an interim order ‘not to arrest the petitioner’ on February 18, 2021. The anticipatory bail application was posted on March 18, 2021 after impleading an additional respondent. After this, the anticipatory bail application was posted before the Court only after two years.

The Court expressed that it was shocking to find that the anticipatory bail application was posted before the Court only on July 19, 2023 after over a period of two years on maintaining the interim order restraining the arrest of the petitioner.

The Court found that since the ‘not to arrest’ interim order was there, the petitioner who was alleged to have misappropriated over five crores of rupees evaded arrest for over a period of two years. It added that the investigation was completed without questioning the petitioner and without collecting materials to prove the allegation of forgery based on his statement. The Court raised its concern regarding the effectiveness of the investigation conducted without questioning the petitioner.

The Court referred to the Apex Court decision in Satender Kumar Antil v. Central Bureau of Investigation & Others (2022) to state that bail applications have to be disposed within two weeks and anticipatory bail applications are expected to be disposed of within six weeks. The Court also referred to the Apex Court decision in Hussain and Another v. Union of India (2017) where it was held that bail applications in subordinate courts should ordinarily be decided within one week and in High Courts within two-three weeks.

Based on the afore decisions, Justice Badharudeen held that the directions issued by the Supreme Court are binding on the High Court also under Article 141 of the Constitution. The Court held thus: “anticipatory bail applications should ordinarily be disposed of within two-three weeks as held in Hussain and Another (Supra) or within a period of six weeks as held in Satender Kumar Antil (Supra).”

Case Title: M A Mohanan Nair v State of Kerala

Citation: 2023 LiveLaw (Ker) 406

Case number: Bail App. No. 1823/2021

Counsel for the petitioner: Advocate Anila Umesh

Counsel for the respondents: Senior Public Prosecutor P G Manu