Person Outside India Can File Anticipatory Bail Application; But Before Final Hearing, Accused Must Be In India : Kerala High Court

The Kerala High Court has held that Section 438 of the Code of Criminal Procedure has no restrictive mandate that a person outside India cannot file an application seeking anticipatory bail. The only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.

The pronouncement was made by a single bench of Justice Bechu Kurian Thomas while granting anticipatory bail to actor-producer Vijay Babu in a rape case.

The order stated :

"Section 438 Cr.P.C does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail. It is possible that a person can apprehend arrest even outside the country for an offence that occurred in India. With the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country. An apprehension of arrest can arise even while the applicant is residing outside the country. Thus, when a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, court cannot read into the provision such a restriction which the legislature did not incorporate".

The prosecution had raised a preliminary objection to the maintainability of the bail application on the ground that Babu was outside the country when the application was filed.

On the basis of decisions in Souda Beevi and Another v. S.I. of Police and Others (2011 (3) KHC 795) and Shafi S.M. v. State of Kerala and Another (2020 (4) KHC it was argued that the presence of the petitioner outside the country disentitles the applicant to seek pre-arrest bail.

However, the bench said that no absolute restriction has been laid down in these decisions.

"On the other hand, all that those two decisions say is that, atleast before the final hearing, the Court must be convinced that the applicant is within the jurisdiction of the Court so that the conditions if any imposed, could be effectively enforced", the bench observed.

The bench also referred to the judgment delivered by a Constitution Bench of the Supreme Court in 2020 in the case Sushila Aggarwal and Others v. State (NCT of Delhi) and Another, as well as Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565], wherein it was held that courts cannot read into section 438 Cr.P.C. a restriction, which the legislature had not thought it fit to impose. In fact, the Court deprecated the practice of an over-generous infusion of constraints into section 438 and even observed that such restrictions can make the provision itself constitutionally vulnerable.

In this backdrop, Justice Thomas observed :

"Therefore, I am of the considered view that an application for pre-arrest bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions".

The High Court had earlier observed that it will hear Babu's application only after he returned to India. Following that, he came back to India and the Court granted him interim anticipatory bail. In the interim order as well, Justice Thomas had made a prima facie observation that the bail application filed by person outside India is maintainable.

Case Title: Vijay Babu v. State of Kerala & Anr.