Wednesday, 24 August 2016

Whether a person who is not present in India file an application for anticipatory bail?

A fundamental question arises for consideration in this context. Can a person who is not available in India file an application for anticipatory bail under Section 438 of the Code of Criminal Procedure?
The decision in Gurbaksh Singh Sibbia v. State of Punjab MANU/SC/0215/1980 : A.I.R. 1980 S.C. 1632 : (1980) S.C.C. 565 was followed in Sidharam Satlingappa Mehetre v. State of Maharashtra MANU/SC/1021/2010 : (2011) 1 S.C.C. 694.
16. In Gurbaksh Singh Sibbia v. State of Punjab MANU/SC/0215/1980 : A.I.R. 1980 S.C. 1632 : (1980) S.C.C. 565, the Supreme Court considered the conditions to be satisfied before the grant of anticipatory bail. It was held:
35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has 'reason to believe' that he may be arrested for a non-bailable offence. The use of the expression 'reason to believe' shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. S. 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
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. Subsection (2) of Section 438 provides that when the court makes a direction under sub-section (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-section (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 be 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-section (2) of Section 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. Section 438 of the Code of Criminal Procedure is not intended for such a purpose at all.
IN THE HIGH COURT OF KERALA
B.A. Nos. 5358 and 5620 of 2011
Decided On: 17.08.2011
Appellants: Souda Beevi
Vs.
Respondent: S. I. of Police, Pallickal Police Station and another
Hon'ble Judges/Coram:
Mr. Justice K.T. Sankaran


1. Bail Application Nos. 5198 of 2011 and 5358 of 2011 are under Section 439 of the Code of Criminal Procedure filed by Souda Beevi (accused No. 1) and Ahammed (accused No. 2) respectively in Crime No. 638 of 2007 of Pathanamthitta Police Station. Souda Beevi was' arrested on 20-6-2011 and Ahammed was arrested on 25-5-2011. Bail Application No. 5620 of 2011 is filed by Souda Beevi, accused No. 1 in Crime No. 398 of 2011 of Pallickal Police Station, under Section 439 Crl.P.C. She was arrested in that case on 2-7-2011.
2. The offences alleged in Crime No. 638 of 2007 of Pathanamthitta Police Station are under Sections 120-B, 417, 420, 366, 342, 376(2)(g) and 34 of the Indian Penal Code, Section 10 read with Section 24 (b) (1) (g) of the Immigration Act, 1983 and Section 5 of the Immoral Traffic (Prevention) Act. The allegations levelled against the accused are the following: The de facto complainant (victim) was provided with a visa by the first accused Souda Beevi and the 2nd accused Ahammed, to go to Sharjah on 19-7-2007. The de facto complainant was assured a job in a supermarket at Sharjah. On reaching Sharjah, the victim was illegally detained in a flat and she was compelled to have sexual relationship with several persons against her consent and will. The victim was beaten by Souda Beevi and Ahammed, when she resisted the sexual exploitation. The victim was taken to several flats in Dubai also. It is also alleged that the 2nd accused Ahammed also raped the victim. The accused persons presented the victim to several persons after receiving money from the 'customers'. Some of the Keralites helped the victim to escape and seek refuge at the Indian Consulate in Dubai. The victim stayed at the shelter premises of the Consulate from 29th July, 2007 to 12th August, 2007. The victim was repatriated to Kochi on 13-8-2007.
3. The victim reported the matter at Pathanamthitta Police Station on 20-8-2007 and Crime No. 638 of 2007 was registered. The Crime was investigated by the Circle Inspector of Police, Pathanamthitta. He filed a final report on 27-8-2009 before the Magistrate's Court stating that the crime was undetected.
4. The victim filed W.P.(C) No. 4748 of 2010 before the High Court complaining that the police did not investigate the case properly. Meanwhile, the Deputy Superintendent of Police filed a report before the Court of the Judicial Magistrate of the First Class, Pathanamthitta and sought permission to conduct further investigation in the Crime. W.P.(C) No. 4748 of 2010 was disposed of by the Division Bench of this Court directing the investigation of the Crime to be conducted by the Inspector General of Police, Thiruvananthapuram Range. The State was directed to render necessary support and assistance for the investigation. The Division Bench also held that the investigation will be monitored by the High Court. The Division Bench took note of the report submitted by the Inspector General of Police, Thiruvananthapuram Range that none of the investigating officers did investigate the case satisfactorily.
5. The Inspector General of Police scrutinized the investigation and appropriate action was taken against the erring officers. The Circle Inspector of Police and two Sub Inspectors were placed under suspension and departmental enquiry was ordered against them.
6. As per the direction of the Division Bench, a special investigation team was constituted and the investigation of the case is in progress. Statements of the victim and several others were recorded. It is stated that the statement of the victim was also video graphed.
7. On a search conducted at the residence of Souda Beevi, one visa of a woman, blank passport application forms, telephone directory and some other documents were seized.
8. Souda Beevi came to India from abroad on 17-6-2011. She surrendered before police on 20-6-2011. She was arrested by the Special Investigation Team on 20-6-2011. It was revealed that the Passport of Souda Beevi was not genuine. It was found during investigation that Souda Beevi had obtained the passport in the year 1995 in a false name and address. The passport was obtained by her in the name of Sainaba Beevi Ahammed. It was revealed that the person in whose name the passport was taken, did not apply for any passport. Accordingly, Crime No. 398 of 2011 was registered at Pallickal Police Station, Thiruvananthapuram against Souda Beevi under Sections 417, 419, 465, 468, 471, 474 read with Section 34 of the Indian Penal Code and Section 10(3)(c) read with 12(b) of the Indian Passport Act. Formal arrest of Souda Beevi was recorded in that case on 2-7-2011. It is stated that Crime No. 398 of 2011 is also being investigated by the Special Investigation Team. (Bail Application No. 5620 of 2011 relates to Crime No. 398 of 2011).
9. Heard Sri V. Sethunath, Learned Counsel for Souda Beevi, Sri P.V. Murugan, Learned Counsel appearing for Ahammed and the learned Public Prosecutor.
10. Sri V. Sethunath, the Learned Counsel, submitted that the arrest of Souda Beevi was quite illegal. The arrest was contrary to the order dated 26th March, 2010 in B.A. No. 5717 of 2009. That Bail Application filed by Souda Beevi under Section 438 of the Code of Criminal Procedure for anticipatory bail was allowed with the following directions:
Accordingly, a direction is issued to the officer-in-charge of the police station concerned to release the petitioner on bail for a period of one month in the event of her arrest in connection with the above case on her executing a bond for ` 25,000 (Rupees twenty five thousand only) with two solvent sureties each for the like amount to the satisfaction to the said officer and subject to the following conditions:
(1). The petitioner shall report before the investigating officer between 9 a.m. and 11 a.m. on all Wednesdays.
(2). The petitioner shall make herself available for interrogation including custodial interrogation as and when required by the investigating officer.
(3). The petitioner shall not influence or intimidate the prosecution witnesses nor shall she attempt to tamper with the evidence for the prosecution.
(4). The petitioner shall not commit any offence while on bail.
(5). On the expiry of the aforesaid period, the petitioner shall surrender before the Magistrate concerned and seek regular bail.
If the petitioner commits breach of any of the above conditions, the bail granted to her shall be liable to be cancelled.
11. Sri Sethunath, Learned Counsel submitted that on the arrest of Souda Beevi, she should have been released on bail in terms of the order dated 26th March, 2010 in B.A. No. 5717 of 2009. The other conditions in the order granting anticipatory bail would follow only on such arrest and release on bail. In the case on hand, Souda Beevi was remanded to judicial custody, which, according to the counsel, was quite illegal.
12. The learned Public Prosecutor submitted that Souda Beevi filed Contempt Case (Civil) No. 703 of 2011 against the Assistant Commissioner of Police, District Special Branch, Kollam putting forth similar contentions. The Contempt Case was dismissed on 13th July, 2011. The learned Single Judge held, in the judgment dated 13-7-2011, thus:
Even though the said order was passed on 26-3-2010, the petitioner could not be arrested by the Station House Officer evidently for the reason that she was abroad. She also did not appear before the Station House Officer within reasonable time. She came from abroad and made her appearance only on 20-6-2011. One of the conditions stipulated by this Court in Annexure I order was that the petitioner shall not commit any offence while on bail. Admittedly, the petitioner has been involved in two other crimes, namely, Crime No. 505 of 2011 Pathanamthitta Police Station for offences punishable under Sections 447 and 506(i) read with Sec. 34 I.P.C. for intimidating the victim lady in the present case and Crime No. 398 of 2011 of Pallikkal Police Station for offences punishable under Sections 417, 419, 465, 468, 471 and 474 read with Sec. 34 I.P.C. and Section 12(b) of the Indian Passport Act.
3. By not surrendering before the investigating officer within a reasonable time and by involving herself in two other crimes, the petitioner has virtually forfeited her rights under Annexure I order. Such a person shall not complain of civil contempt. This petition is accordingly dismissed and all further proceedings are dropped.
13. From the admitted facts, it is clear that when Souda Beevi filed the Bail Application for anticipatory bail, she was not in India. She did not come to India for more than a year thereafter. The purport and tenor of the order granting anticipatory bail was that she should be available for arrest by the investigating officer. Only on her arrest, the other conditions in the order could be fulfilled. Souda Beevi made herself unavailable for arrest for about one year and three months. The order was to release her on bail for a period of one month. She was obliged to surrender before Court on the expiry of one month. She was also directed to make herself available for interrogation including custodial interrogation. However, she was not available in India during the relevant time and therefore she could not be arrested and released on bail in terms of the order dated 26th March, 2010. In these circumstances, I am of the view that the order dated 26th March, 2010 has worked itself as impossible of performance. An order for anticipatory bail cannot be kept in cold storage for years together to facilitate the accused to avail its benefit whenever he/she finds pleasure to make herself available for arrest.
14. A fundamental question arises for consideration in this context. Can a person who is not available in India file an application for anticipatory bail under Section 438 of the Code of Criminal Procedure?
15. In Gurbaksh Singh Sibbia v. State of Punjab MANU/SC/0215/1980 : A.I.R. 1980 S.C. 1632 : (1980) S.C.C. 565 the Constitution Bench of the Supreme Court held thus:
Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail 'if it thinks fit'. The concern of the courts generally is to preserve their discretion without meaning to abuse it ft will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law.
The decision in Gurbaksh Singh Sibbia v. State of Punjab MANU/SC/0215/1980 : A.I.R. 1980 S.C. 1632 : (1980) S.C.C. 565 was followed in Sidharam Satlingappa Mehetre v. State of Maharashtra MANU/SC/1021/2010 : (2011) 1 S.C.C. 694.
16. In Gurbaksh Singh Sibbia v. State of Punjab MANU/SC/0215/1980 : A.I.R. 1980 S.C. 1632 : (1980) S.C.C. 565, the Supreme Court considered the conditions to be satisfied before the grant of anticipatory bail. It was held:
35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has 'reason to believe' that he may be arrested for a non-bailable offence. The use of the expression 'reason to believe' shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. S. 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
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. Subsection (2) of Section 438 provides that when the court makes a direction under sub-section (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-section (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 be 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-section (2) of Section 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. Section 438 of the Code of Criminal Procedure is not intended for such a purpose at all.
18. For the aforesaid reasons, I reject the contentions put forward by Advocate Sri Sethunath that the Investigating Officer was not justified in arresting and producing Souda Beevi before Court.
19. Sri P.V. Murugan, Learned Counsel appearing for the second accused submitted that the victim did not make a complaint through the Consul General of India in Dubai. The offence was committed in Dubai. The victim should have reported the matter to the Consul General of India in Dubai. On the other hand, the victim, on her arrival at her native place, reported the matter to the police and the Crime was registered. The offence having been allegedly committed outside India, registration of the Crime by Pathanamthitta Police was illegal.
20. The learned Public Prosecutor submitted that the aforesaid contention is not sustainable in view of Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure. These provisions are extracted below:
4. Extension of Code to extraterritorial offences.--The provisions of this Code apply also to any offence committed by --
(1). any citizen of India in any place without and beyond India;
(2). any person on any ship or aircraft registered in India wherever it may be;
(3). any person in any place without and beyond India committing offence targeting a computer resource located in India.
Explanation.--In this section--
(a). the word 'offence' includes every act committed outside India which, if committed in India, would be punishable under this Code;
(b). the expression 'computer resource' shall have the meaning assigned to it in clause (k) of sub-section (1) of Section 2 of the Information Technology Act, 2000.
188. Offence committed outside India.-- When an offence is committed outside India --
(a). by a citizen of India, whether on the high seas or elsewhere; or
(b). by a person, not being such citizen, on any ship or aircraft registered in India,
he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
21. The learned Public Prosecutor also relied on the Full Bench decision in Samaruddin v. Assistant Director of Enforcement 1999 (2) K.L.T. 794 2009 (1) K.L.T. 943 and the Division Bench decision in Muhammed Rafi v. State of Kerala(4) in support of the above contention. The Full Bench in 1999 (2) K.L.T. 794 held thus:
Clause (a) of Section 188 makes it clear that the section applies if the offence has been committed by a citizen of India outside India whether on the high seas or elsewhere. Clause (b) makes it clear that if the offence is committed by a person who is not an Indian citizen on any ship or aircraft registered in India, then also the section applies. In the proviso to the section, sanction of the Central Government is made necessary for inquiry or trial of such offences. S. 188 Cr.P.C. only deals with the procedure and nothing else. In the instant case, the act alleged is said to have been committed outside India and, therefore, it amounts to an offence punishable under the Indian Penal Code.
22. In Muhammed Rafi v. State of Kerala 2009 (1) K.L.T. 943, the Division Bench held that for any investigation of an offence, punishable under the Indian Penal Code and alleged to have been committed outside India by an Indian citizen does not require sanction of the Central Government under Section 188 of the Code of Criminal Procedure.
23. In the light of the above settled legal position, the contention put forward by the Learned Counsel for the second accused is liable to be rejected.
24. It would appear that the accused are very rich and influential persons. They could influence the investigating agency to submit a final report before court stating that the crime was undetected. That the Investigating Officer did not act properly is clear from the report submitted by the Inspector General of Police, Thiruvananthapuram Range, which was accepted by the Division Bench in W.P.(C) No. 4748 of 2010. Souda Beevi filed B.A.No. 5717 of 2009 for anticipatory bail in which the first respondent was the Circle Inspector of Police, Pathanamthitta. The Circle Inspector of Police was the Investigating Officer who filed final report before Court stating that the offence could not be detected. Souda Beevi could get a fake passport in the name of another person in 1995. She used that passport and went abroad. Annexure 7 statement of the victim (produced by the petitioner in B.A. No. 5198 of 2011) shows that a Municipal Councillor and certain others including the brother of Souda Beevi offered a huge amount to the victim to withdraw the case. The victim was also threatened by them.
25. If the petitioners are released on bail, there is every likelihood that they would make themselves scarce and flee from justice. It is also likely that they may try to intimidate, influence or terrorise the victim and the witnesses and tamper with the evidence. The offences alleged against the petitioners are very serious in nature. In the facts and circumstances of the case, I am not inclined to grant bail to the petitioners in the Bail Applications.
For the aforesaid reasons, the Bail Applications are dismissed.

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