The Kerala High Court has in an extremely learned, laudable, landmark and latest judgment titled Vijay Babu v. State of Kerala & Anr. in Bail Application No. 3475 of 2022 pronounced while granting interim anticipatory bail to actor Vijay Babu in a rape case observed that the accused being abroad does not disentitle him from having his anticipatory bail application considered. Justice Bechu Kurian Thomas who delivered this notable judgment clarified that this observation was made only for considering the grant of interim protection from arrest.
This observation came close on the heels of Additional Director General of Prosecution Kuriakose submitting that the petitioner had filed the bail application after fleeing the country and his intention was to remain outside the jurisdiction, elusive to the investigation.
The learned counsel for the petitioner, Sri.S.Rajeev, submitted that the petitioner is arrayed as an accused in Crime No. 515 of 2022 of the Ernakulam South Police Station alleging offence under 376(2) (n), 506 and section 323 of the Indian Penal Code 1860. The learned Counsel submitted that though petitioner is presently outside the Country he is willing to come down to Kerala, within the jurisdiction of this Court and face investigation. However, due to the threat of immediate arrest raised by the investigation, he fears deprivation of his liberty without getting an opportunity to have the application for pre-arrest bail considered on merits. In such circumstances, petitioner pleads for an interim protection from arrest.”
On a consideration of the aforesaid contentions solely for the purpose of interim protection, I notice the decision in Sushila Aggarwal and Others v. State (NCT of Delhi) and another [(2020) 5 SCC 1], wherein a Constitution Bench of the Supreme Court had considered various principles relating to the grant of anticipatory bail. It was observed that the paramount right of every individual protected under Article 21 of the Constitution of India, can be deprived only by procedure established by law and that Section 438 is one such procedure which the legislature has enacted and that courts should lean against imposition of unnecessary restrictions on the scope of section 438, especially when not imposed by the legislature.
Most significantly, the Bench then clearly states in para 8 that, “Bearing in mind the aforesaid principles laid down by the Supreme Court, I am of the view that, for the present, merely because the petitioner is outside the country, the same by itself cannot deprive him of his right to have his application for anticipatory bail considered by this Court. The decision referred to in Souda Beevi’s case (supra) can be said to be impliedly overruled and decision in S.M.Shaffi’s case (supra) did not take notice of the judgment in Sushila Agarwal’s case and therefore, could be regarded as judgment sub silentio. However, I clarify that the above observations are made only for considering the grant of interim protection from arrest.
All said and done, the single Judge Bench comprising of Justice Bechu Kurian Thomas of Kerala High Court held most unequivocally in this leading case that the anticipatory bail is maintainable even if accused is presently outside the country. We thus see that eminent actor Vijay Babu gets interim anticipatory bail in a rape case that he was facing. The Court thus accords legitimate and bona fide reasons for granting anticipatory bail as discussed herein aforesaid! It certainly merits no reiteration that all the courts in similar such cases must adopt a liberal approach as we see in this leading case also!
About the author
