Anticipatory bail plea must disclose whether accused is abroad or in India: Kerala High Court

The Kerala High Court recently held that an accused person seeking anticipatory bail should disclose in his petition whether he is abroad or in India [Suo Motu v State of Kerala & Ors].Non-disclosure of the same would amount to suppression of material facts, the Court held. A Division Bench of Justices Anil K Narendran and PG Ajithkumar observed that whether or not an accused person is abroad could significantly impact the decision of a court. Even if anticipatory bail is granted, knowledge of where the applicant is would be necessary to impose appropriate conditions in accordance with the directions in Section 482 of the Bharatiya Nyaya Sanhita, 2023 (BNS), the Court said. "Therefore, where the accused person is abroad at the time of making an application for pre-arrest bail under sub-section (1) of Section 482 of BNSS, the said material fact that possesses the potential to significantly influence the decision-making process of the court and the imposition of conditions as in clauses (i), (iii), etc. of sub-section (2) of Section 482 of BNSS, has to be disclosed in such an application, failing which it would amount to suppression of materials facts from the notice of the court," the Court said in its judgment. Therefore, the Court directed the High Court Registry to add a mandatory field in anticipatory bail applications to indicate whether the applicants are in India or abroad at the time of filing."Therefore, the Registry is directed to have a compulsory field in the bail application module for all pre-arrest bail applications to ascertain whether the applicant accused is in India or abroad at the time of making the application," the bench added..The judgment was passed in a matter referred to the Division Bench after a single-judge noted that applicants were deliberately suppressing the fact that they were abroad while filing anticipatory bail applications..The Division Bench observed that if an applicant is abroad, it may hinder law enforcement’s ability to apprehend them, especially if bail is denied. It noted that in several cases, it was only discovered later during the filing of a second bail application that the accused was abroad all along.To highlight the importance of disclosing this information, the Court cited the judgment in Anu Mathew v. State of Kerala in which the Kerala High Court had held that anticipatory bail applications filed by persons abroad can be entertained by courts. However, the Court had also observed that it is necessary to know the applicant’s location to correctly impose conditions under Section 438 of the Code of Criminal Procedure (CrPC). The Division Bench noted that Section 482 of the BNS, which is the corresponding section to CrPC, states that the accused must make themselves available for police interrogation and must not leave the country without the court’s permission. Therefore, failure to disclose the whereabouts of accused persons could lead to improper imposition of these conditions, making it crucial for such information to be presented transparently..Therefore, the Court held that failing to disclose whether an accused is abroad while filing anticipatory bail applications could amount to suppression of material facts. Accordingly, the Court disposed of the referred matter directing the Registry to include a field that anticipatory bail applicants would have to fill indicating their whereabouts. .Deputy Solicitor General of India TC Krishna represented the Union while Special Government Pleader and Additional Public Prosecutor P Narayanan appeared for the State..[Read Order]