Courts Can Entertain Plea For Anticipatory Bail Even If Accused Is Abroad At The Time Of Filing The Application: Kerala High Court

The Kerala High Court recently held that anticipatory bail application is maintainable even if the accused is in a foreign country at the time of filing the application.

In view of the reference made by a single bench of the Court, the division bench comprising of Justice Alexander Thomas and Justice C S Sudha was considering the question of whether a person who is outside India can file an application for anticipatory bail.

The reference was made by a single bench of Justice P.V Kunhikrishnan as it differed from the law laid down by the single bench of Justice Bechu Kurian Thomas in the case of Vijay Babu v. State of Kerala [2022 (4) KLT 24] where it was held that a person who is outside India can  file an anticipatory bail application, as long as before the final hearing, the accused is in India. The single bench while making the reference had opined that when the Court in Shafi S.M. v. State of Kerala and Anther [2020 (4) KHC 510] had already held that an application under Section 438 Cr.P.C. cannot be filed by an accused sitting in a foreign country, then the single bench in Vijay Babu’s case ought not to have decided the matter without referring the same to the Division Bench.

The division bench took the view that a pre-arrest bail can be entertained in a case where the accused is in a foreign country at the time of filing of the application under Sec.438 Cr.PC. The Court referred to the decisions in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565] and to Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. [(2020) 5 SCC 1] to observe that the Supreme Court has consistently stated that courts should be cautious about imposing unnecessary limitations on the scope of Section 438 as denial of bail amounts to deprivation of personal liberty.

“Hence, by cumulative understanding of the dictum laid down by the Constitution Bench verdicts of the Apex Court in decisions as in Gurbaksh Singh’s case supra [(1980) 2 SCC 565], Sushila Aggarwal’s case supra [(2020) 5 SCC 1], which emphasizes on leaning against over infusion of restrictions on the scope and ambit of Sec.438 and also viewing Sec.438 Cr.P.C. from the prism of procedure established by law envisaged by Art.21 as well as from the perspective of the Right to access to justice for an accused involved in a non bailable offence in his endeavor to defend his personal liberty, and also taking into account that the right to travel abroad is a fundamental right and also taking into account the social reality that lakhs of individuals from the state and other parts of the Country are settled, by way of employment, etc., in various foreign countries and also the scenario of travelling abroad by individuals for various other purposes, it is only to be held that the mere fact that an accused happens to be in a foreign country, at the time he institutes an application for pre-arrest bail under Sec.438 Cr.P.C., will not be a ground to hold that such an applicant cannot legally maintain his plea for pre-arrest bail”.

The court also referred to some procedural aspects to reiterate its position. The Court noted that the second proviso to Rule 17(1) of the Kerala High Court Rules states that an advocate representing an accused in a criminal matter, instead of filing a vakalat, can file a memorandum of appearance, with a declaration that the advocate has been duly instructed by the accused to do so. The court noted that under Rule 31 of the Criminal Rules of Practice (Kerala) too, a pleader can file a memorandum of appearance on behalf of an accused. These procedural rights are conferred on all persons irrespective of whether they are in India or abroad, the court observed.

“So, it can be seen that even the legislature/subordinate legislature has envisaged that in a case where the accused is abroad, further roadblocks need not be placed in regard to his Right to access to justice and like any other accused who is in India, he is also entitled to engage a counsel of his choice through a memo of appearance and not necessarily by execution and filing of vakalath. This incidental aspect of the matter is also having a significant dimension as far as understanding the nature and scope of the “procedure established by law” that has to meet the test of Art. 21 of the Constitution of India.”

The Court further observed that Vijay Babu's case relied on the decisions of the Supreme Court in Gurbaksh Singh's case [(1980) 2 SCC 565] and Sushila Aggarwal's case [(2020) 5 SCC 1]. The single bench had held that it would not be appropriate to interpret Section 438 of the Cr.P.C to include limitations that the legislature had not included. The single bench had concluded that a person residing outside of India may file an application for pre-arrest bail, subject to the condition that the accused must be present in the country before the final hearing to enable the court to enforce the conditions specified in the statutory provisions.

The court also held that the 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 510) which disentitled the petitioner to apply for pre arrest bail from outside the country, must only be understood in light of its specific factual background:

“if Souda Beevis case supra [2011 (4) KLT 52] and Shafi’s case supra [2020 (4) KLT 703], are understood as if it has been laid down as a rule of universal and general application, that the anticipatory bail court does not have jurisdiction to entertain a pre-arrest bail plea merely because the accused is abroad at the time of filing of application, then it cannot be said to have reflect the correct legal position. As already stated hereinabove, such a reading of the dictum laid down in the afore decisions, is not warranted or justified.”

However the court also observed that it may not be appropriate to grant anticipatory bail in circumstances where the accused fled the country being fully aware of a non-bailable offence registered against him/her. In such cases, judicial discretion must exercised 'in a sound and wise manner', the court observed.

“if such an accused had absconded from India and had gone abroad knowing fully well about the registration of a crime in respect of a non bailable offence, then thereafter, though he may technically have the locus standi to maintain a pre-arrest bail plea, but if as a matter of fact, the Court is convinced that he has absconded and fled away from the law enforcement agencies, etc., then it may not be right and proper exercise of jurisdiction to grant interim bail to such an accused who is abroad.” 

Case Title: Anu Mathew V State of Kerala

Citation: 2023 LiveLaw (Ker) 198

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