Jancy vs State Of Kerala

Shircy V, J

The petitioners are the accused in Crime No. 578 of 2021 of Uthamapalayam Police Station registered for the offences punishable under Sections 294(b), 417, 406, 448, 442, 120B, 420, 506(ii) of the Indian Penal Code.

The case of the petitioners is that they are residing at Udumbanchola Taluk in Idukki District. The 1st petitioner is a lady aged 63 years and the 2nd petitioner, her son, is a Government employee working as an Upper Division Clerk in the Planning Department, Kerala at Udumbanchola Taluk. On the basis of a complaint lodged by the defacto complainant, Crime No. 578 of 2021 was registered before Uthamapalayam Police Station, Theni District, State of Tamil Nadu for the aforementioned offences.

Learned Counsel for the Petitioner submits that though they are totally innocent of the allegations levelled against them, they apprehend arrest in connection with the crime registered against them by the Uthamapalayam police and hence this application is filed under Section 438 of the Code of Criminal Procedure.

At the time of argument, the learned counsel for the petitioners would submit that as the crime has been registered against them in the State of Tamil Nadu, they are intending to move anticipatory bail application before the Madras High Court. But due to the travel restrictions imposed by the States in the wake of pandemic Covid 19, they are unable to proceed to Tamil Nadu to file an application for pre-arrest bail. Since they are unable to proceed to Tamil Nadu at this stage, they have approached this court with this application for a direction not to arrest them in connection with this crime for a few days just to enable them to approach the jurisdictional court seeking pre-arrest bail.

The learned counsel relies on a decision of the Division Bench of this court in Madhusoodan v. Superintendent of Police (1992 KHC 301) as well the decision of a learned Single Judge in Samdeep Varghese and Another v. State of Kerala and Others. (2010(2) KHC 881) in support of the argument on behalf of the petitioners. In both these cases, this Court had considered the pre-arrest bail application submitted by the parties concerned though, the territorial jurisdiction of the offences alleged to have been committed by them were not within the territorial limits of this Court. In the above decisions, it was observed that pre-arrest bail can be granted, though the offences alleged were committed within the territorial limits of another High Court, when the parties apprehend arrest. It is true that due to the spread of Covid 19 pandemic, the petitioners are unable to proceed to Tamil Nadu to approach the jurisdictional court seeking a relief of pre-arrest bail as travel restrictions are imposed by both the States.

In Nathu Singh v. State of Uttar Pradesh and Ors. Ompal Singh v. State of Uttar Pradesh and Ors. (AIR 2021 SC 2606) the Supreme Court in paragraphs 25 and 26 observed as follows:

"25. However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme under Section 438 Cr.P.C., particularly, the proviso to Section 438(1) Cr.P.C. and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one.

The impugned orders passed by the High Court, in the present appeals, do not meet any of the standards as laid out above. We say so for the following reasons: firstly, after the dismissal of the anticipatory bail application, on the basis of the nature and gravity of the offence, the High Court has granted the impugned relief to the respondents without assigning any reasons. Secondly, in granting the relief for a period of 90 days, the Court has seemingly not considered the concerns of the investigating agency, complainant or the proviso under Section 438(1), Cr.P.C. Which necessitates that the Court pass such an exceptional discretionary protection order for the shortest duration that is reasonably required. A period of 90 days, or three months, cannot in any way be considered to be a reasonable one in the present facts and circumstances."

Therefore, I think that though the jurisdiction of this Court is not ousted, pre-arrest bail need be granted to these petitioners only for a few days so as to enable them to approach the jurisdictional court as the proper jurisdictional court is the court having territorial jurisdiction. Since the offences are committed within the territorial limits of another High Court and the parties are intending to move before the Court having territorial jurisdiction, it is not necessary to delve deep into the allegations levelled against these petitioners.

Therefore, this application is allowed, in the interest of justice for a period of two weeks to enable the petitioners to approach the proper jurisdictional High Court to seek pre-arrest bail, subject to the following conditions:

(i) The petitioners shall be released on bail on each of them executing a bond for a sum of Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the police officer in the event of their arrest.

(ii) The petitioners shall not commit any offence while on bail.

Considering the peculiar circumstances, it is made clear that this order will remain in force only for a period of two weeks from today.