Can a person who is not available in India file an application for anticipatory bail ?

Section 438 of the Code of Criminal Procedure provides that where any person has reason to believe that he may be arrested on an accusation of having committed a non bailable offence, he may apply to the High Court or the Court of Session for a direction under the section and the Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Sub- section (2) of Section 438 provides that when the court makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including those mentioned in clauses (i) to (iv) in sub section (2).

Clause (iii) thereof is “a condition that the person shall not leave India without the previous permission of the Court.”

The aforesaid provisions would indicate that the court must be satisfied that the person concerned is either present in India or he must be able to be present in India immediately before the final hearing. If the person concerned is not present in India, the court would not be able to stipulate a condition that he shall not leave India without the previous permission of the court, as contemplated in clause (iii) of sub-section (2) of Section 438.

# A person absent from India cannot leave India.

The only irresistible conclusion that could be arrived at is that a person who is not in India or who does not intend to visit India soon, cannot conveniently remain abroad and move an application for anticipatory bail before a court in India, A blanket order cannot be passed to enable a person to wield that order whenever he finds pleasure to visit India and thereafter leave the country at his pleasure and flee from justice.

Section 438 of the Code of Criminal Procedure is not intended for such a purpose at all.

[This fundamental question arises for consideration before the Kerala High Court in Souda Beevi Vs. S.I of Police 2011 (4) KLT 52 : 2011 (3) KLJ 796 : 2011 (3) KLD 483 in which Justice K.T. Sankaran answered the law as above.]

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