Kerala High Court
Abdul Latheef vs State Of Kerala on 23 September, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941
Bail Appl..No.6895 OF 2019
CRIME NO.171/2019 OF Wadakkancherry Police Station , Palakkad
PETITIONER/ACCUSED:
ABDUL LATHEEF
AGED 35 YEARS
S/O. BASHEER, NOOLIDAMPARA, KUZHALMANNAM, PALAKKAD
DISTRICT
BY ADV. SRI.BABY MATHEW
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031
2 STATION HOUSE OFFICER
VADAKKENCHERY POLICE STATION, PALAKKAD DISTRICT - 678
001
OTHER PRESENT:
SRI.T.R.RENJITH, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.09.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.6895/2019 2
ALEXANDER THOMAS, J.
-------------------------------------------
B.A.No.6895 of 2019
----------------------------------------------
Dated this the 23rd day of September, 2019
ORDER
The petitioner herein has been arrayed as the sole accused in the instant Crime No.171/2019of Vadakkencherry Police Station, which has been registered for offences punishable under Section 354C of IPC and Section 67A of the Information Technology Act on the basis of F.I. Statement/complaint given by the lady defacto complainant involved in this case.
2. The learned Public Prosecutor would point out that the Investigating Officer has instructed him to submit that the petitioner is now abroad and hence it is urged by the learned Public Prosecutor that the plea for anticipatory bail is not now maintainable in view of that.
3. Sri. Baby Mathew, learned counsel appearing for the petitioner would confirm the correctness of the factual submission made by the prosecution and would reiterate that, as a matter of fact, the petitioner is now in Saudi Arabia. It is now well settled by a series of decisions of this Court including the one as in Souda Beevi v. Sub Inspector of Police [2011 (4) KLT 52] that in a case where the accused is admittedly abroad at the time of motion of the anticipatory bail, then the plea for pre-arrest bail/anticipatory B.A.No.6895/2019 3 bail under Section 438 of Cr.P.C. is not maintainable. It will be profitable to refer paragraph 17 of the decision of this Court in Souda Beevi's case (supra) (2011 (4) KLT 52 {p.57, Para 17}], , which reads as follows:
"17. Section 438 of the Code of Criminal Procedure provides that where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under the section and the Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Sub-s.(2) of S.438 provides that when the court makes a direction under sub-s.(1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including those mentioned in clauses (i) to (iv) in sub-s.(2). Clause (iii) thereof is "a condition that the person shall not leave India without the previous permission of the Court." The aforesaid provisions would indicate that the court must be satisfied that the person concerned is either present in India or he must be able to present in India immediately before the final hearing. If the person concerned is not present in India, the court would not be able to stipulate a condition that he shall not leave India without the previous permission of the court, as contemplated in clause (iii) of sub-s.(2) of S.438. A person absent from India cannot leave India. The only irresistible conclusion that could be arrived at is that a person who is not in India or who does not intend to visit India soon, cannot conveniently remain abroad and move an application for anticipatory bail before a court in India. A blanket order cannot be passed to enable a person to wield that order whenever he finds pleasure to visit India and thereafter leave the country at his pleasure and flee from justice. S.438 of the Code of Criminal Procedure is not intended for such a purpose at all.
4. This Court is in respectful concurrence with the considered views rendered by the learned single Judge of this Court (K.T. Sankaran,J.) in Souda Beevi's case (supra). Accordingly, it is only to be held that the present plea of the petitioner for anticipatory bail is not maintainable.
5. The learned counsel for the petitioner would submit that the petitioner intends to immediately come back to Kerala within 2-3 weeks, but that lookout notice/lookout circular has been issued by the Police authorities in relation to the above said crime and therefore, he apprehends that he may B.A.No.6895/2019 4 be arrested immediately on his arriving at the airport in the State of Kerala etc.
6. As regards the said submission made on behalf of the petitioner, it is only to be noted that this Court has only held herein that the present plea of the petitioner for anticipatory bail is not maintainable, in view of the above said factual aspects. It is for the petitioner to work out his remedies in the manner known to law.
With the said liberty, the above anticipatory bail application will stand dismissed as not maintainable.
sd/-
ALEXANDER THOMAS, JUDGE.
acd