- According to the Kerala High Court, Section 438 of the Code of Criminal Procedure does not restrict the ability of a person to file an application for anticipatory bail from outside of India.
- The applicant must be present in the country prior to the final hearing in order for the court to impose and enforce the requirements set forth in the legislative provisions. This is the only restriction.
- When granting anticipatory relief to actor-producer Vijay Babu in a rape case, a single bench of Justice Bechu Kurian Thomas signed the proclamation.
- On the grounds that Babu was out of the country when the application was filed, the prosecution had made a preliminary objection to the bail application's maintainability.
- On the basis of the rulings in the cases of Souda Beevi and Others v. S.I. of Police and Others and Shafi S.M. v. State of Kerala and Others, it was asserted that the petitioner being outside the country barred him from requesting pre-arrest bail.
- The bench clarified that none of these cases imposed an absolute prohibition.
- However, those two cases only suggest that in order for any conditions that may be imposed to be successfully implemented, the Court must be persuaded that the applicant is within its jurisdiction at least prior to the final hearing.
- The Supreme Court's ruling in Sushila Aggarwal and others v. State (NCT of Delhi) and Another as well as Shri Gurbaksh Singh Sibbia and Others v. State of Punjab in 2020, which held that courts cannot read restrictions into section 438 Cr.P.C. that the legislature had not deemed appropriate to impose, was also cited by the bench.
- In fact, the Court condemned the practice of liberally imposing restrictions on section 438 and even noted that such limitations may leave the clause itself open to constitutional challenge.
- The High Court had previously stated that it would only hear Babu's request once he had returned to India. He then returned to India after receiving interim anticipatory bail from the court.
- Justice Thomas had stated that the bail application submitted by a person outside of India is maintainable in the interim order as well.
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