Kerala HC: Accused Exempted From Personal Appearance including accused residing abroad Can Answer Questions Virtually Or In Writing as per S.351 BNSS

 In Basavaraj R.Patil and others v. State of

Karnataka and others [(2000) 8 SCC 740], while

considering the question whether the accused can be

permitted to file his written submissions under Section

313 of the Cr. P.C, the Hon'ble Supreme Court has held as

follows:

“23. Section 243(1) of the Code enables the accused,

who is involved in the trial of warrant case instituted on

police report, to put in any written statement. When any

such statement is filed the Court is obliged to make it part

of the record of the case. Even if such case is not instituted

on police report the accused has the same right (vide

Section 247). Even the accused involved in offences

exclusively triable by the Court of sessions can also exercise

such a right to put in written statements [Section 233(2) of

the Code]. It is common knowledge that most of such

written statements, if not all, are prepared by the

counsel of the accused. If such written statements can

be treated as statements directly emanating from the

accused, hook, line and sinker, why not the answers

given by him in the manner set out hereinafter, in

special contingencies, be afforded the same worth.

24. We think that a pragmatic and humanistic

approach is warranted in regard to such special exigencies.

The word shall in clause (b) to Section 313(1) of the Code is

to be interpreted as obligatory on the Court and it should be

complied with when it is for the benefit of the accused. But

if it works to his great prejudice and disadvantage the

Court should, in appropriate cases, e.g., if the accused

satisfies the court that he is unable to reach the venue

of the court, except by bearing huge expenditure or

that he is unable to travel the long journey due to

physical incapacity or some such other hardship

relieve him of such hardship and at the same time

adopt a measure to comply with the requirements in

Section 313 of the Code in a substantial manner. How

this could be achieved?

25. If the accused (who is already exempted from

personally appearing in the Court) makes an application to

the court praying that he may be allowed to answer the

questions without making his physical presence in court on

account of justifying exigency the court can pass

appropriate orders thereon, provided such application is

accompanied by an affidavit sworn to by the accused himself

containing the following matters: (a) A narration of facts to

satisfy the court of his real difficulties to be physically

present in court for giving such answers. (b) An assurance

that no prejudice would be caused to him, in any manner, by

dispensing with his personal presence during such

questioning. (c) An undertaking that he would not raise any

grievance on that score at any stage of the case.

26. If the court is satisfied of the genuineness of

the statements made by the accused in the said

application and affidavit it is open to the court to

supply the questionnaire to his advocate (containing

the questions which the court might put to him under

Section 313 of the Code) and fix the time within which

the same has to be returned duly answered by the

accused together with a properly authenticated

affidavit that those answers were given by the accused

himself. He should affix his signature on all the sheets

of the answered questionnaire. However, if he does not

wish to give any answer to any of the questions he is free to

indicate that fact at the appropriate place in the

questionnaire [as a matter of precaution the Court may keep

photocopy or carbon copy of the questionnaire before it is

supplied to the accused for answers]. If the accused fails to

return the questionnaire duly answered as aforesaid within

the time or extended time granted by the court, he shall

forfeit his right to seek personal exemption from court

during such questioning.

27. In our opinion, if the above course is adopted in

exceptional exigency it would not violate the legislative

intent envisaged in Section 313 of the Code.” {Para 6}

15. In light of the above discussions, I don't find any

legal impediment in permitting the petitioner to answer

the questions under Section 351 BNSS either by adopting

the procedure laid down in Section 351 (5) BNSS and

Basavaraj R.Patil’s case or by getting his answers

recorded via the electronic video linkage under the

Linkage Rules and getting the statement signed as per

the procedure under Rule 8 (16) of the Rules. It would be

up to the petitioner to choose the method.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.MC NO. 9203 OF 2025

RAMESHAN Vs  STATE OF KERALA,

PRESENT

 MR.JUSTICE C.S.DIAS

Dated this the 22nd day of October, 2025.

Citation: 2025:KER:77918.

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Kerala HC: Whether the Bail Court has jurisdiction to pass orders restraining the Police from arresting accused without passing interim bail orders?

The third referred issue in B.A. No. 4421/2022 (which is the 4th issue mentioned supra) is as to whether the Bail Court has jurisdiction to pass orders restraining the Police from arresting the accused without passing interim bail orders as per Sec.438(1) of the Cr.P.C. In the light of the dictum laid down by the Constitution Bench of the Apex Court in para 52, more particularly, para 52.14, of Sushila Agarwal v. State (NCT, Delhi) & Anr. [MANU/SC/1538/2019 : (2020) 5 SCC 1, p.86] and paras 40 & 41 of Gurbaksh Singh Sibbia v. State of Punjab [MANU/SC/0215/1980 : (1980) 2 SCC 565, pp. 590-591], it is not right and legally correct for an Anticipatory Bail Court to pass orders or interim orders restraining the arrest of the accused or directing not to arrest the accused, etc. However, as categorically held in para 42 of Gurbaksh Singh's case supra [MANU/SC/0215/1980 : (1980) 2 SCC 565, p.591] and various other decisions, the Anticipatory Bail Court, in appropriate cases, will have the discretionary power to issue interim bail order/ad-interim bail order if the Court is convinced that it is so warranted, pending consideration of the main bail application. But, while considering passing of such interim bail orders, the Court should ensure strict conformity with the requirements of Sec.438. The last referred issue in B.A. No. 4421/2022 will also, thus, stand answered.

{Para 109}

 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.

Read full Judgment here:  Click here.

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Kerala HC: Whether the court should grant anticipatory bail to a accused who has absconded abroad after registration of offence?

So, if in a case it is established and the Court is convinced that the accused/bail applicant had absconded from India and had gone abroad, after fully knowing about the registration of a non-bailable offence against him and thereafter, he files a bail application under Sec.438 of the Cr.P.C. while he is still abroad, then it may not be proper exercise of discretion to grant bail in such a case. This is not to say that the Court has no jurisdiction to entertain a bail application under Sec.438, merely because the accused/applicant is abroad at the time of filing of the application. We are answering this factual premised issue only in the context of the issue as to whether it would be right and proper exercise of discretionary jurisdiction. So also, if such an accused had absconded from India and had gone abroad knowing fully well about the registration of a crime in respect of a non bailable offence, then thereafter, though he may technically have the locus standi to maintain a pre-arrest bail plea, but if as a matter of fact, the Court is convinced that he has absconded and fled away from the law enforcement agencies, etc., then it may not be right and proper exercise of jurisdiction to grant interim bail to such an accused who is abroad. {Para 107}

108. In this regard, the Courts may examine whether the accused was already abroad at the time of registration of crime. Even if the accused had gone abroad after registration of the crime, it may be ascertained whether he had bonafide gone abroad in view of his employment or professional compulsions, etc. General relevant facts should be ascertained by the Court, before reaching factual conclusions, as above.

 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.

Read full Judgment here:  Click here.

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Kerala HC: What conditions the court should impose while granting anticipatory bail to accused residing abroad?

 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.

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