In The Matter Of Priyam Khetawat

Order dated 30.6.2017 granting pre-arrest bail to the opposite party no.2 is under challenge on the ground of suppression of material facts.

It has been contended on behalf of the petitioner that opposite party no.2 was granted anticipatory bail by a coordinate bench of this court at a material point of time when she was abroad. Such fact was not brought to the notice of the court when the impugned order was passed. Hence, the order granting pre-arrest bail was procured by suppression of material facts and is liable to be set aside.

In response, the learned counsel appearing for the opposite party no.2 relies on averments made in the affidavit-in-opposition and submits that the opposite party no.2 was present in the country at the time of filing of the application for pre- arrest bail. Thereafter she went abroad to pursue her higher studies. Inadvertently such fact was not brought to the notice of the bench at the time of hearing of the application for pre-arrest bail.

This submission, however, has been seriously contested on behalf of the petitioner who reiterates that by intentional suppression of material facts the order granting pre-arrest bail was obtained.

We have considered the materials on record. Admittedly the opposite party had gone abroad at the time when her application for pre-arrest bail was taken up for hearing. This fact was suppressed from the bench who passed the order granting anticipatory bail on 30.6.2017.

The moot question which falls for consideration is whether the absence of the opposite party from the country was a material fact which ought to have been disclosed to the bench which was in seisin of the application seeking pre-arrest bail.

Section 438 of the Code of Criminal Procedure, inter alia, empowers the High Court or the Court of Sessions to grant pre-arrest bail in the event of arrest on the accusation of a non bailable offence on certain conditions. The statutory conditions which a court ordinarily may impose on an accused while granting such relief are as follows :

" (2) When the High Court or the Court of Session 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 thinks fit, including -

(i) A condition that the person shall make himself available for interrogation by a police officer as and when required ;

(ii) A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer ;

(iii) A condition that the person shall not leave India without the previous permission of the Court ;

(iv) Such other condition as may be imposed under sub section (3) of section 437, as if the bail were granted under that section. " (emphasis supplied)

One of the aforesaid conditions is that a Court while granting anticipatory bail may pass is that the accused shall not leave the country without the leave of the court. Hence, it is of vital importance that the court while considering a prayer for pre-arrest bail is apprised of the fact whether the accused is within the country or not. Nearness of the accused to the Investigating Agency also necessary to ascertain the immediate prospect and/or reasonable apprehension of arrest which is a condition precedent for invocation of such jurisdiction. We, however, ought not to be understood to mean that in no case an accused may apply for pre-arrest bail under the aforesaid provision while he / she is abroad.

However, in the backdrop of the aforesaid statutory scheme, we are of the opinion that the fact whether the accused is within the country or not is a material circumstance which ought to be brought on record for an effective consideration of his / her prayer for pre-arrest bail.

Hence, I am in agreement with the learned counsel appearing for the petitioner that it was incumbent on the opposite party no.2 to disclose to the Bench which was in seisin of her prayer for pre-arrest bail that she had left the country at the time of consideration of such relief. Non disclosure of such fact in our considered opinion clearly vitiated the discretion of the bench and, accordingly, we are of the opinion that the grant of pre-arrest bail in the instant case is vitiated by non disclosure suppression of material facts. It is trite law that an order obtained by suppression of material facts is void ab initio and non est in law.

It has been strenuously argued that such non disclosure was unintentional and the opposite party is ready and willing to return to the country and pray for similar relief.

In view of the aforesaid discussion, we are of the opinion that the impugned order dated 30.6.2017 is liable to be set aside. However, in view of the submission that the opposite party no.2 is ready and willing to return to the country, we choose to stay operation of this order for a period of three weeks within which period the opposite party will be at liberty to return to the country and seek similar relief in accordance with law.

In the event the opposite party no.2 fails to return to the country and seek appropriate relief upon due notice to the State within the time, as aforesaid, this order of cancellation of anticipatory bail shall take due effect and the Investigating Agency will be at liberty to take appropriate steps against her in the course of investigation in accordance with law.

With the aforesaid directions, the petition is allowed. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.