LAWS(KER)-2006-7-81

SHAJI P R Vs. STATE OF KERALA

Decided On July 20, 2006
SHAJI P.R. Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) In State of Kerala v. Vishnu 2006 (1) KLT 445, a learned single Judge of this Court gave detailed general directions to be followed by the High Court and the criminal courts while filing criminal proceedings. In paragraph 34 of the judgment in Vishnu's case, the learned Judge gave the following directions:

(2.) Direction No. (iii) issued by the learned Judge was that when a person who is not under custody while applying for a pre-arrest bail, commonly called "anticipatory bail", it should be supported by an affidavit. Petitioner in this case filed such a bail application without filing the affidavit from the counsel for the petitioner filed vakalath and contended that the court cannot insist for filing an affidavit along with application for anticipatory bail as no such procedure is prescribed under the Code of Criminal Procedure or Statutory rules. It is further contended that such general directions cannot be issued while considering the facts of a particular case and framing of such a procedure which was not contemplated in Vishnu's case (supra) is not a binding precedent (sub-silentio). It was also contended that such restrictions cannot be imposed by the Court and is violative of Article 20 (3) of the Constitution of India. The learned Judge who passed the order in his magnanimous judicial approach, found that there is some substance in the points argued by the counsel for the petitioner, but, as the learned Judge cannot review his own decision, the matter was referred to the Division Bench. The learned Judge observed as follows:

(3.) In Vishnu case, anticipatory bail was already granted and the judgment reported in Vishnu's case was pronounced in a proceedings initiated suo motu under Section 439 (2) of the Code of Criminal Procedure for cancelling the pre-arrest bail granted to the respondent. According to the petitioner, there was no other issue before the court and ultimately court also did not interfere in the anticipatory bail granted to the party. But, directions issued in paragraph 34 and observations made therein are of very general nature which cannot be made when facts of a particular case alone was before the court. Direction Nos. (i), (viii) and (ix) of paragraph 34 are covered by Rules 31, 33 and 35 of the Criminal Rules of Practice, Kerala. Direction No. (iv) is regarding the form of affidavit as prescribed under Rules 37 to 46 and direction Nos.(vi) and (vii) are only formal directions. Petitioner is very much concerned about direction Nos.(ii), (iii) and (iv). In paragraphs 26 and 30 of the judgment it was observed as follows: