Kerala HC judge disagrees with colleague on bail granted to Vijay Babu

Justice PV Kunhikrishnan made the observations while hearing a similar case where a petitioner, who was booked under various sections of the POCSO Act, had sought anticipatory bail.
File image of actor producer Vijay Babu wearing a white shirt
File image of actor producer Vijay Babu wearing a white shirt

A Kerala High Court judge has disagreed with certain observations made by Justice Bechu Kurian Thomas while granting anticipatory bail to Vijay Babu, and said that the bench should not have decided the matter without sending it to a two-judge bench. 

Justice PV Kunhikrishnan, while disagreeing with the order passed by Justice Bechu Kurian Thomas granting bail to Vijay Babu, observed that the actor-producer, facing allegations of rape, should not have been granted anticipatory bail if the application was filed while he was abroad. 

Justice PV Kunhikrishnan made the observations on Monday, June 27, while hearing a similar case where a petitioner, who was booked under various sections of the POCSO Act, had sought anticipatory bail. The court noted that when the case came up for hearing, the petitioner was not present in India, and so Justice Kunhikrishnan pronounced the order in open court denying the accused woman anticipatory bail. He cited his own order from 2020, (SM Shafi vs State of Kerala) where he had held 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.”

However, Justice Kunhikrishnan said that just after he delivered the judgement on June 22, he was informed of the Kerala High Court’s judgement in the Vijay Babu case, delivered on the same day. Vijay Babu had fled to Dubai after he was booked in the rape case, and the Kerala High Court bench of Justice Bechu Kurian Thomas said that the law on anticipatory bail (Section 438 of the CrPC) does not contain a restrictive mandate that a person residing outside the country cannot file an application for pre-arrest bail.

Justice Kunhikrishnan said he disagrees with Justice Thomas’s observation that “apprehension of arrest can arise even while the applicant is residing outside the country,” and that since there is no restrictive clause in the anticipatory bail law, the higher courts in India have a discretionary right to consider whether a pre-arrest bail ought to be granted. 

“I am in respectful disagreement with the above observation of the learned Judge,” Justice Kunhikrishnan wrote. “When in Shafi’s case this Court clearly stated that an application under Section 438 Cr.P.C. cannot be filed before this Court by an accused sitting in a foreign country, the learned Single Judge ought not have decided the matter without referring the same to the Division Bench.” Justice Kunhikrishnan cited a previous order of a full bench of the Kerala High Court from 2006 where it said, “a court of coordinate jurisdiction is expected to follow the decision of a coequal Bench.”

Justice Kunhikrishnan also said that if an accused in a case has left India knowing that a case with grievous offences has been registered against him, and then he files a bail application before the High Court after leaving India, that person is not entitled to protection from arrest, especially when there is no such power as per Section 438 CrPC. “Even interim bail is not deserving to such persons because the jurisdiction under Section 438 CrPC is discretionary.

“According to me, the dictum laid down in Vijay Babu’s case (supra) requires reconsideration,” Justice Kunikrishnan said. 

On June 22, the Kerala High Court bench of Justice Bechu Kurian Thomas had granted conditional pre-arrest bail to Vijay Babu, directing him to appear for interrogation before the Kerala police and cooperate with the investigation. The bench had dismissed the prosecution’s submission against Vijay’s bail application that he cannot seek pre-arrest relief while he is in Dubai. 

The court also observed that based on first impressions, the WhatsApp conversations between Vijay Babu and the survivor, which were submitted to the court, show an ‘intense relationship’ between the two. The court also made observations saying that while prejudices and stereotypes about 'ideal victims' should be avoided, consensual relationships “should not be converted into instances of rape.”

Related Stories

No stories found.
The News Minute
www.thenewsminute.com