By Express News Service
KOCHI: Justice PV Kunhikrishnan dissented from one other single decide’s discovering that an software for pre-arrest bail may be filed even by an individual residing outdoors the nation. This is opposite to Justice Bechu Kurian Thomas’s order just lately to grant pre-arrest bail to actor-producer Vijay Babu in a rape case whereas he was overseas.
“This court has got ample powers to refuse bail because the power under Section 438 CrPC itself is a discretionary jurisdiction. Such persons need not be invited to the country by a court of law invoking the powers of interim bail under section 438 CrPC is my considered opinion,” held Justice PV Kunhikrishnan and added that the matter must be determined by a Division Bench of this Court. Then the court docket directed the registry to put the matter earlier than Chief Justice for passing applicable orders.
The matter was referred to a Division Bench for deciding the authorized query on issuing a directive to not arrest an accused and likewise on entertaining an anticipatory bail plea by an accused who goes overseas after registration of against the law towards an individual.
Justice Kunhikrishnan issued the order whereas contemplating an anticipatory bail plea of Anu Mathew of Thiruvalla, working as a trainer in Kuwait and an accused within the offences underneath the Protection of Children from Sexual Offence Act (POCSO).
Deferring Justice Bechu Kurian Thomas who had directed the police to not arrest actor-producer, Vijay Babu, on his return from overseas, Justice Kunhikrishnan noticed that “I am in respectful disagreement with the observation of the Judge. When in Shafi’s case this Court had clearly stated that an application under Section 438 CrPC cannot be filed before this Court by an accused sitting in a foreign country, the Single Judge ought not to have decided the matter without referring to the same to the Division Bench.”
“A reading of section 438 CrPC will show that there is no power to the court to restrict the arrest of an accused during the investigation. If the court feels that an accused deserves pre-arrest bail, an interim bail can be granted under Section 438 (1) CrPC. If the principle in Sushila Aggarwal’s case is applied, the court has no jurisdiction to restrain the Police in arresting a person except to order interim bail because no such power is there in Section 438 CrPC,” noticed Justice Kunhikrishnan.
Moreover, as per the primary proviso to Section 438 CrPC, the Police are allowed to arrest an individual if there is no such thing as a interim bail granted by the court docket even when a bail software is filed. If an accused in a case left India after figuring out {that a} case with grievous offences is registered towards him and submitting a bail software earlier than the High Court after leaving India isn’t entitled to an order to not arrest particularly when there is no such thing as a such energy as per Section 438 CrPC. Even interim bail isn’t deserving of such individuals as a result of the jurisdiction underneath Section 438 Cr.P.C. is discretionary.
The court docket granted interim bail to the petitioner until the disposal of the bail software.
