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.

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