- In contrast to the ruling made last week by the High Court's coordinate bench, which held that Section 438 of the Code of Criminal Procedure has no restrictive mandate prohibiting a person from filing an application for anticipatory bail outside of India, the Justice P.V. Kunhikrishnan bench of the Kerala High Court deviated from the law today.
- It should be noted that Justice Bechu Kurian Thomas last week held that someone outside of India can very well file an anticipatory bail application, so long as the accused is in India before the final hearing. This ruling involved actor and producer Vijay Babu, who was granted anticipatory bail in a rape case.
- There is no prohibition in Section 438 Cr.P.C. prohibiting someone from applying for anticipatory bail if they are abroad. It is feasible for someone to anticipate being arrested even outside of the nation for a crime committed in India.
- The decision was made in an anticipatory bail request submitted by Anu Mathew, a Kerala native who is currently residing in Kuwait.
- It was stated that the petitioner was not available in India as of that day when the case was brought before Justice PV Kunhikrishnan's bench on June 22, 2022. This was the petitioner's second bail plea.
- There is no prohibition in Section 438 Cr.P.C. prohibiting someone from applying for anticipatory bail if they are abroad. It is feasible for someone to anticipate being arrested even outside of the nation for a crime committed in India.
- However, before the judgement could be dictated, it came to the notice of the Court delivered in Vijay Babu (supra), wherein an opposite view had been taken. The Court then proceeded to dismiss the bail application as not maintainable in light of the judgement of this Court in Shafi S.M. v. State of Kerala and Others.
- It should be mentioned that the Kerala High Court ruled in Shafi's case that a person residing outside of the nation cannot file a petition under Section 438 of the Criminal Procedure Code before the court anticipates an arrest.
- However, the HC took a different stance in Vijay Babu's case. As a result, on June 24, 2022, the court marked the present case as "to be spoken."
- The Court held that the co-ordinate bench (in the Vijay Babu case) should not have made its decision without first referring it to the Division Bench because the Court had previously held in Shafi's case (supra) that an application under Section 438 Cr.P.C. cannot be filed before this Court by an accused who is present in a foreign country.
- In light of this, the Court posed the three issues listed above and sent the matter to the Chief Justice for further action. Since the person seeking bail returned to India in this instance, the court decided to give her interim bail while deferring decision on the bail request to a Division Bench.
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