The Kerala High Court in Vijay Babu v. State of Kerala & Anr. has held that Section 438 of CrPC has no restrictive mandate that a person outside India cannot file an application seeking anticipatory bail but the only caveat is that the applicant should be present in the country for the final hearing.
The Hon’ble Bench observed that “Section 438 CrPC 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 bona fide 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 court also relied on Sushila Aggarwal and Others v/s State (NCT of Delhi) and Anr and Shri Gurbaksh Singh Sibbia and Others v. the State of Punjab “wherein it has been noticing the object behind the incorporation of section 438 CrPC held that the said section is a procedural provision which is concerned with the personal liberty of an individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. After noticing that the crimes, the criminals and even the complainants can occasionally possess extraordinary features, in which the powerful processes of criminal law could be perverted for achieving extraneous ends, the Supreme Court observed that it is to meet such situations also that the provision for grant of anticipatory bail was introduced into the Code of 1973.”