Reporting By: Amit Kashyap.
The Kerala High Court single bench of Justice Bechu Kurian Thomas in VIJAY BABU Vs. STATE OF KERALA & Anr. BAIL APPL. NO.3475 OF 2022 CRIME NO.515/2022 OF ERNAKULAM TOWN SOUTH POLICE STATION, ERNAKULAM, 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 Court observed that “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 further 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 [(2020) 5 SCC 1], 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.
The Hon’ble bench therefore held 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.
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Important Citation: Sushila Aggarwal and Others v. State (NCT of Delhi) and Another [(2020) 5 SCC 1]
Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565],
Petitioner Advocates: SRI. S. RAJEEV, SRI. V. VINAY, SRI. M. S. ANEER, SRI. SARATH K.P.
Respondents Advocates: SRI. GRASHIOUS KURIAKOSE ADDL. DIRECTOR GENERAL OF PROSECUTION, SRI. M. R. RAJESH.
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Judgements In Criminal Law 