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Kerala HC: Person Outside India can File Anticipatory Bail Plea, Must be in India Before Final Hearing

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Kerala high court law insider)

Debangana Ray

Published on June 23, 2022 at IST

Kerala HC has held that Section 438 of the CrPC has no restrictive rule that persons outside of India cannot file an application seeking anticipatory bail.

The only condition is that before final hearing, the applicant must be in the country to facilitate the court to enforce conditions contemplated under statutory provisions.

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

The prosecution had objected to the maintainability of the bail application on the ground that Vijay Babu was outside the country when the application was filed.

On the basis of judgements, Souda Beevi and Another v. S.I. of Police and others and Shafi S.M. V State of Kerala and Another, it was argued that if the petitioner is outside the country, it disentitles the applicant from seeking a 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 court observed.

The bench also referred to the judgement delivered by the Constitution Bench of the Supreme Court in 2020 in the case of Sushila Aggarwal and Others v State (NCT of Delhi) and Another as well as Shri Gurbaksh Singh Sibbia v State of Punjab where it was held that courts cannot read into Section 438 CrPC 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 which, he came to India and the court granted him interim anticipatory bail.

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