CASE TITLE:
Vijay BabuVs State of Kerala & Anr
DATE OF ORDER:
22nd JUNE, 2022
JUDGE(S):
Hon’ble Justice Bechu Kurian Thomas
PARTIES:
PETITIONER: Vijay Babu
RESPONDENT: State of Kerala &Anr
IMPORTANT PROVISIONS
Section 438 of the Code of Criminal Procedure
SUBJECT
The Kerala High Court ruled that Section 438 of the Code of Criminal Procedure contains no stipulation that a person residing outside of India cannot file an application for anticipatory bail. The only restriction is that the applicant must be present in the country prior to the final hearing in order for the court to impose and enforce the conditions contemplated by the statutory provisions.
BRIEF FACTS
- The prosecution had filed a preliminary objection to the bail application's maintainability on the grounds that Babu was out of the country at the time the application was filed.
- It was argued in Souda Beevi and Others v. S.I. of Police and Others (2011 (3) KHC 795) and Shafi S.M. v. State of Kerala and Others (2020 (4) KHC) that the petitioner's presence outside the country disentitles the applicant to seek pre-arrest bail.
- In fact, the Court condemned the practise of overburdening section 438 with constraints, observing that such constraints can render the provision itself constitutionally vulnerable.
- According to the bench, these decisions do not impose any absolute restrictions. On the other hand, all those two decisions say is that the Court must be convinced, at least before the final hearing, that the applicant is within the Court's jurisdiction so that any conditions imposed can be effectively enforced, the bench observed.
ANALYSIS BY THE COURT
- The Court stated Section 438 Cr.P.C. does not include a provision stating that a person residing outside the country cannot apply for anticipatory bail.
- It is possible for a person to be apprehended even outside the country for an offence committed in India. With advancements in investigative technology and communication, various investigative agencies may even be deployed to arrest someone outside the country.
- Even if the applicant is living outside the country, there is a possibility of arrest. As a result, when a legitimate apprehension exists, the statute empowers such a person to seek protection from arrest.
- In the absence of any restrictive clauses in S.438, preventing a person residing outside the country from filing an application for pre-arrest bail, the court cannot read such a restriction into the provision that the legislature did not include.
CONCLUSION
- A single bench led by Justice Bechu Kurian Thomas issued the ruling while granting anticipatory bail to actor-producer Vijay Babu in a rape case.
- The High Court had previously stated that it would not hear Babu's application until he returned to India. After that, he returned to India, and the Court granted him interim anticipatory bail.
- In the interim order, Justice Thomas also stated that the bail application filed by a person residing outside of India is maintainable.
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