Whether an anticipatory bail can be filed by a person while residing outside India: Legal Perspective

Introduction 

Law is a dynamic field which consistently changes or more specifically speaking, improvises itself and takes its shape as per the needs and requirements of a common man. But before getting into the main part i.e., an anticipatory bail, first one must know what is a bail? And in order to know that, one must have a clear understanding of what amounts to an offence and under what circumstances a bail is granted. So, keep reading, if you want to gain insights over this issue of anticipatory bail especially with respect to a person who is residing outside India in a legal perspective. 

To define an ‘offence’ under statutory meaning, it is an act or omission made punishable by any law for the time being in force. The term offence constitutes in itself two sub-categories i.e., bailable and non-bailable offences. The term ‘bail’ is nowhere defined in the code of procedural laws i.e., CRPC, 1973. But it could be roughly defined as an interim release of an accused person accompanied by some sort of security on the core belief that the person would appear before the court whenever & wherever called. 

Issues Raised

Now there are certain issues which are raised revolving around the term ‘Bail’ and some of the essential ones are addressed below: -

●    What is an anticipatory bail?
●    What are the conditions in which it is granted by the court?
●    Can a person while residing outside of India file an anticipatory bail before an Indian court?

1.    What is an Anticipatory Bail?

An anticipatory bail is nowhere defined in the Code of Criminal Procedure 1973. However, Section 438 of the code deals with the provisions regarding Anticipatory Bail in India. As the name suggests “Anticipatory” i.e., a bail which is granted to a person by a court in anticipation of person’s arrest for a non-bailable offence and by that it acts as a preventive measure for an accused which was not included in the original legislation of CRPC, 1973.

But as the development arose in the legal world it became a necessity for the guardians of law to come up with legislation or bare minimum certain provisions that could deal with this issue of Anticipatory bail. As the so-called influential people of the society try to take advantage of this loophole and detain their nemesis into false cases with the main purpose of creating a nuisance in their lives and defaming them by putting them behind bars.

2.    The conditions required by the court for granting an anticipatory bail. 

The courts, mainly High Court or the Court of Sessions, while granting an anticipatory bail keep in mind certain conditions which after fulfilling consider granting an anticipatory bail to the accused. These conditions are mentioned under section 438(2) but are only illustrative in nature and the courts are in full discretion to impose other conditions as well, as per the situation and to maintain an equilibrium between individual rights and duty of the state.

The following are certain conditions imposed while granting an anticipatory bail; -

a.    The applicant must be present whenever and wherever called upon by the court for police investigation as required by the police officer.
b.    The applicant shall not leave the country without the court's consent.
c.    The applicant must submit his personal details like contact number, permanent address and a subsidiary address to the concerned police officer.
d.    The applicant shall not use any undue influence like use of threat, inducement or make any lucrative promise to any person of importance of the case.
e.    The applicant satisfies the court by fulfilling certain conditions like, he comes for a respectable family and is a reputable member of the society.
f.    The charges framed against the applicant are vague and are generic in nature.

3.    Can a person while residing outside India file for an anticipatory bail?

The Honorable Kerala High Court in the Vijay Babu v. State of Kerala & Anr. (2022) held that an application for pre-arrest bail can be filed by a person who is residing outside India. There were certain other points which were taken into consideration by the Kerala HC upon giving their judgment which are listed below: -

●    Section 438 of CRPC 1973, does not include a provision which specifically states that a person residing outside India can not file for an application of Anticipatory bail.
●    It is quite possible for a person to be apprehended even outside the country for an offence committed in India, due to advancements in tech & communication.
●    In the case of a person residing outside India, there is a possibility of arrest as per S. 188 of CRPC and S.4 of IPC, and when a legitimate apprehension exists. The statute empowers such a person to seek protection from such an arrest.

Basically, the crux of this case is to make it clear that an Anticipatory bail can be granted to a person residing outside India. And as stated by the single judge bench of Honorable Justice Bechu Kurian Thomas, a bail application filed by a person residing outside India is maintainable with a condition which is – “The applicant must be present in the country i.e., within court’s jurisdiction prior to the final hearing in order for the court to enforce proper conditions as per stated by the statute”. 

Due to the immense spotlight the case has received because of the involvement of the actor Vijay Babu, the Honorable Supreme Court also gave its insights saying, “We are not inclined to interfere with the impugned order of the Kerala High Court. Except, that we modify the part on interrogation. We make it clear that the petitioner may be interrogated beyond 3 July 2022, if necessary” (as per the order stated on 6 July 2022) – By Honorable Supreme Court.

Conclusion

Anticipatory bail, is a preventive measure for an individual who has an apprehension of arrest and to save him from police abuse and ill treatment by the system in general and also it acts as a safeguard from the powerful people, when they are involved in a case. However, the main question of this blog was “whether a person residing outside of India file an application for anticipatory bail”, And as the question to this answer has already been addressed above it still lacks a proper explanation. Like in the case of Gurbaksh Singh Sibbia v. State of Punjab (1980) it was held that in Section 438(2)(iii), the person shall not leave India without the previous consent of the court. However, if a person is not in India, the court can not frame a condition that he shall not leave India without taking previous consent of the court.

As a person who is not in India can not leave India and the reasonable inference that could be taken out from this is that a person who is not in India at the moment is accompanied by a state of mind “To not visit India anytime soon”. And this person just can not take lightly the proceedings of Indian courts by comfortably sitting in a foreign land. This in layman terms means that there is still a lack of clear-cut provision for an absolute restriction of a person residing outside India to file an application for anticipatory bail in an Indian court under Section 438 of CRPC. As leading cases like that of actor Vijay Babu is a classic example of modern twist and turn into the original interpretation of Section 438 of CRPC. 

References

●    https://indianexpress.com/article/explained/supreme-court-anticipatory-bail-explained-6244033/
●    https://legislative.gov.in/sites/default/files/A1974-02.pdf
●    https://www.livelaw.in/news-updates/breaking-kerala-high-court-grants-anticipatory-bail-to-actor-producer-vijay-babu-in-rape-case-subject-to-conditions-202063#:~:text=BREAKING%7C%20Kerala%20High%20Court%20Grants,Rape%20Case%20Subject%20To%20Conditions&text=The%20Kerala%20High%20Court%20on,him%20of%20sexually%20exploiting%20her.
●    https://indiankanoon.org/doc/1308768/