Pre-Arrest Bail To Accused Residing Abroad

Situation 02: An FIR is registered under section 306 of IPC against X for abetting the suicide of Y. The FIR is registered in September 2022. The incident of suicide is of August 2022. It transpires during the investigation that X had already left India in March 2022 and since then has been residing abroad. Now, apprehending his arrest in India, X seeks to move an anticipatory bail application before the Court.

There are numerous examples of NRIs, against whom an FIR may be lodged when they are abroad, alleging an offence they committed while they were in India. The NRIs fear that the moment they land in India, they will be arrested and therefore they file a 438 CrPC application.

The question is therefore, can an accused person file an anticipatory bail application when he is residing abroad. There are certain issues to such a course of action, some of which are: -

• Generally the law states that a regular bail application can be supported by the affidavit of the parokar of the accused (since the applicant is in jail, therefore naturally unable to execute his affidavit). However, an anticipatory bail application has to be supported by the affidavit of the person apprehending his arrest. The rules of various High Courts are clear regarding this. But a person, who is residing abroad, cannot naturally sign his own affidavit. Can the affidavit in such cases be signed by the parokar of the applicant? Most often, the registry of the courts takes objection to this and lists those applications under defect.
• How would the court impose conditions of bail on such a person such as directing the applicant to cooperate with the investigation including appearing before the police officer, and conditions regarding not leaving India without prior permission of the court?
• Issue of filing Vakalatnama
• Applicant stating that he intends to visit India in the near future and is apprehending his arrest, is generally considered an insufficient averment by the court. Courts insist that the applicant must make a clear averment as to the day on which he would come to India, otherwise, the factum of apprehension of arrest is not complete and the bail application is not maintainable.

The perils of an anticipatory bail order to an accused residing abroad were narrated from the facts of Souda Beevi case [2011 (4) KLT 52 (SB)], wherein applicant had secured an anticipatory bail order while she was abroad. It was mentioned that in the event of her arrest, she should be released on bail for a period of one month and thereafter she should seek regular bail. There was no direction as to when she should come back to India. As a result, the applicant blatantly misused the order by not coming back to India for a long time and came only after a gap of more than one year, whence she was arrested. She later filed a contempt petition against the IO who arrested her claiming that she had the protection of a pre-arrest bail order from the court.

The purpose of an anticipatory bail order is that a person should make himself available for investigation without the threat of arrest floating on his shoulders. But in this case, the order of anticipatory bail was kept in cold storage for months and was misused.

Recently, The Kerela High Court in Anu Mathewvs. State of Kerela has given an authoritative ruling in deciding an application for pre-arrest bail when the applicant is residing abroad. The court divided the issue into two parts: First, whether the court has jurisdiction to grant pre-arrest bail to the accused residing in a foreign country. Second, in case the court has jurisdiction, then how should such jurisdiction be exercised?

First Stage: Maintainability

Concerning the first issue, the Court relying upon various pronouncements, held, that courts should not impose restrictions u/s 438 CrPC which were not contemplated by the Legislature. An application for pre-arrest bail can be entertained even though the applicant is residing abroad since he has a fundamental right to travel abroad and also a fundamental right to access courts for determination of his rights. Today, many more people are travelling abroad for employment purposes and are settled abroad. There is no necessity to file a vakalathnama, as the advocate can even file a memorandum of appearance declaring that he has been duly instructed by the applicant to appear on his behalf. Moreover, in such cases the application for pre-arrest bail can be supported by the affidavit of parokar of the applicant.

Second Stage: Exercise of Jurisdiction

Once, it is established that the court has jurisdiction to hear the application of pre-arrest bail even when the applicant is not in India, the next step is to find out whether the jurisdiction should be exercised in favour of applicant or not. The court pointed out an illustrative list that has to be seen while exercising its discretion to grant pre-arrest bail:-

• Whether there is bonafide apprehension of arrest in a non-bailable offence in India,
• Whether the accused is not likely to cooperate in investigation/trial processes,
• Whether custodial interrogation is required,
• Whether the Accused bona fide went abroad as part of their job compulsions or he went abroad to flee away from the arm of law,
• Whether the accused was already abroad at the time of registration of the crime,
• Whether the accused had absconded from India after knowing about the registration of a Non-Bailable offence against him,
• Whether the accused intends to come back to India and cooperate with the investigation,
• Whether the attempt of the accused is to buy time and stultify the investigation and the trial.

Once the court finds that the accused person has put forth convincing grounds for the grant of anticipatory bail, then the court may consider imposing conditions to secure his attendance in the court including conditions under section 438(2) (i) and (iii). The court also stressed upon adding a condition that the accused person must within a reasonable and definite time come to India to cooperate and submit himself to investigation by police and in case he fails, the anticipatory bail would automatically vacate. The court also has the power to grant interim bail, subject to the applicant being present in India, at the time of the final hearing of the bail application.

Although no provision under CrPC makes it mandatory for the accused person to be physically present in India before his pre-arrest bail application can be heard on merits, suitable conditions can be imposed by the court based on facts and circumstances of the case to ensure his presence.

Section 438 (1) CrPC was amended by the amendment act of 2005 (Act no. 25/2005), wherein section 438(1A) and (1B) were added. It made the appearance of the accused-applicant before the court at the time of the final hearing of his pre-arrest bail application obligatory, however, the said amendment was never brought into force. Now the entire CrPC has been replaced with BNSS, and the new section 484 completely omits sections 438 (1A) and 438(1B) of the erstwhile code.

There is no universal formula for granting or refusing pre-arrest bail to an accused residing abroad. The court has to separate the wheat from the chaff to find out whether the contentions raised in the application are bona fide or not. Whether his presence abroad is bona fide or mala fide has to be judged, along with other relevant facts of the case. Justice Krishna Iyer had remarked that the subject of bail belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion.