Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
Suffice to say, the courts may have to cautiously and prudently assess the scenario and in such cases, it may be only in the fitness of things and to avoid giving leverage to the accused to abuse or misuse the grant of the bail order to stipulate a condition as per Sec.438(2) to regulate the bail order granted as per Sec.438(1) that the accused should come back to the country and co-operate with the Police investigati0n within a reasonable time limit. So also, the courts could impose conditions in the nature of Clause (iii) of Sec.438(2) that, in such a scenario the accused shall not leave India without the prior permission of the jurisdictional court concerned. In cases of this nature, conditions as per clauses (i) & (iii) of Sec.438(2), would be necessary to effectuate the very purpose of grant of bail, which is to ensure that the accused co-operates with both the investigati0n and the trial. {Para 98}
100. Further, since the conditions, as envisaged in clauses (i) & (iii) of Sec.438(2), form the very bedrock of the purposes and objectives of grant of bail so as to ensure that the accused co-operates with the investigation and trial, etc., the anticipatory bail court will also have jurisdiction to order that if such conditions imposed by the said court that the accused, who is abroad, should come back to India and co-operate with the police investigati0n within a stipulated time limit, etc., is not complied with by the accused, then, the order granting anticipatory bail, under Sec.438(1) could be ordered to be vacated, etc.
101. If the Court is satisfied about the parameters and criteria for grant of bail in a given case, where the accused is abroad, then the court, in its discretion, could consider the grant of interim bail order subject to satisfying the strict requirements of Sec.438. Once the Court grants such bail order, then it shall be the duty of the Police authorities and law enforcement agencies to honour such bail order granted to an accused, who is abroad, so that he can come to the country and execute the bail bonds, etc. Therein, the court can also stipulate that one of the conditions to regulate the grant of interim bail, which is an ancillary power under Sec.438(1), by imposing condition as in clause (i) of Sec.438(2) that, the applicant/accused should come back to India and co-operate with the interrogation process within a specified, reasonable time limit, etc. As and when the court thereafter considers the disposal of the main application, it is found that the accused has not complied with the condition to come to India and to co-operate with the Police investigati0n, etc., within the stipulated time limit, and the court is convinced about the lack of bona fides, etc., then the court will also have the discretion to dismiss the main application and to consequently order that the order granting interim bail will stand vacated and the main application itself could be dismissed. Such approach in appropriate cases would also be conducive of the legislative intention conceived in the engraftment of the discretion granted to the bail court to impose conditions as in Clauses (i) & (iii) of Sec.438(2) to regulate the grant of bail that the accused shall co-operate with the police investigation and shall not leave India without the permission of the jurisdictional court concerned. In other words, this option can be a basis for the court to be assured that the bail granted on interim basis is not abused or misused by the accused and to ensure the effectuation of the condition that the accused should be in India, as envisaged in Clause (iii) of Sec.438(2).
102. The learned Amici Curiae have submitted that in appropriate cases, if the Court finds that the case is free of complications and the case of the accused, who is abroad, fulfils the parameters and factors for grant of bail under Sec.438(1), then the Court will also have the discretion to dispose the main application granting bail, subject to strict condition, including the condition that the accused should come over to the country within a specified reasonable time limit to co-operate with the police investigation and shall not thereafter leave India, without the prior permission of the jurisdictional court, etc. That in such cases, the Court will also have the power to lay down a further condition that if the accused does not come to India, within the above specified time limit, then the bail so granted would stand vacated on expiry of the said time limit. That such a power is ancillary and incidental to the primary objectives of grant of bail which are to ensure the co-operation of the accused with the investigation and trial, etc.
103. It is also pointed out that if the Court can pass interim bail order to an accused who is abroad and can later vacate the interim bail order and dismiss the main bail application, if he does not comply with the condition to come to India within a specified time limit to co-operate with the police investigation, then the aforesaid option of passing a final order granting bail, with the afore conditions is also a lawful option in the exercise of discretion. In this regard, it is to be noted that such an option will also be open to the Court, depending upon the facts and circumstances of the case and if the Court is convinced that such discretion in that regard could be prudently exercised, so as to avoid misuse of the bail orders secured by accused, who is abroad.
104. In this regard, it may be pertinent to note the dictum laid down by the Constitution Bench of the Apex Court in para 92.3 of Sushila Aggarwal's case supra [MANU/SC/1538/2019 : (2020) 5 SCC 1, p. 110] that, wherein it has been inter alia held that, while considering an anticipatory bail application, the court has to consider various parameters like, the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, likelihood of fleeing justice (such as leaving the country), etc., and the courts would be justified and ought to impose conditions spelt out in Sec.437(3) CrPC [by virtue of Section 438(2)]. The need to impose other restrictive conditions, would have to be judged on a case-by-case basis and depending upon the materials produced by the State or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed, etc.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl. Nos. 4421 and 4983 of 2022
Decided On: 11.04.2023
Anu Mathew Vs. State of Kerala
Hon'ble Judges/Coram:
Alexander Thomas and C.S. Sudha, JJ.
Author: Alexander Thomas, J.
Citation: MANU/KE/0926/2023.
