Writ Jurisdiction Can Be Invoked To Seek Bail In Exceptional Cases To Secure Liberty: Kerala High Court

Justice K Babu observed,

“While seeking a relief of bail in a petition under Article 226 of the Constitution, the High Court has to exercise its power conscious of the fact that the petitioner has an alternate remedy and in exceptional cases like this a party can seek relief to secure his liberty in a petition under Article 226 of the Constitution.”

The bench was dealing with a writ petition challenging a Sessions Court order refusing pre-arrest bail to the petitioner. While doing so, the Sessions Court had gone on to suggest the Investigating agency to invoke certain provisions under the POCSO Act against the petitioner.

High Court said the petitioner had not approached it as a substitute for recourse to the remedy of bail. He was also aggrieved by the "observations" made by the Sessions Court in his application seeking anticipatory bail.

Relying upon the Apex Court decision in Sanjay Dubey v. The State of Madhya Pradesh and another (2023), the Court stated that the Sessions Court while considering a bail application under Section 439 CrPC has to only consider whether to grant bail or not.

The Court observed that when a limited issue in connection with bail was only being considered by the Sessions Court under Section 438 or 439 CrPC, it should not make directions or observations beyond that.

“The legal principle emerges from the above discussion is that, when a Sessions Court is concerned with a limited question of grant of bail under Section 439 or 438 to the accused, it is not appropriate for the Court to make observations or directions travelling beyond the consideration of grant of bail to the accused.”, the Court stated while holding that the observations made by the Sessions Court was unsustainable.

Counsel for the Petitioner: Advocates Abraham Mathan, P.P.Harris

Counsel for the Respondents: Public Prosecutor G Sudheer

Citation: 2024 LiveLaw (Ker) 84

Case title: Abdul Kabeer P.U v State of Kerala

Case number: WP(CRL.) NO. 1028 OF 2023

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