Granting Pre-Arrest Bail for Accused Individuals Residing Abroad


The article basically highlights on the aspects whether anticipatory bail should be given to the accused who are residing in abroad, especially is they are charged for non-bailable offences. An application for pre-arrest bail can be entertained even though the applicant is residing abroad since he has a fundamental right to travel abroad and also a fundamental right to access courts for determination of his rights.

Key words: interim bail, anticipatory bail, regular bail, bail and non-bailable offences.


Law is a dynamic field which consistently changes or more specifically, improvises itself and takes its shape as per the needs and requirements of common man. 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’ is itself categorized into two groups i.e; bail and non-bailable offences. Bail is defined under CrPC 1973. But it could also be defined as interim release of an accused person accompanied by some sort of security with the belief that the person would appear before the court whenever and wherever called. However, in this Article the focus is on Pre arrest Bail i.e; Anticipatory Bail basically governed under Section 438 of the Code of Criminal Procedure. Section 438 is procedural provision which is concerned with the personal liberty of the individual. Section 438 has a clear nexus with the personal liberty which is protected from unfair, unjust and unreasonable deprivation by Art. 21 of the Constitution.

Remedies available to an Accused upon accusation of a Crime:

 Regular bail- A person who is arrested and in police custody can apply for a regular/daily bail. Bail provisions are given under Section 437 and 439 of the Code of Criminal Procedure. Under Section 437 Cr.pc courts other than High Court and Sessions grant bail, whereas under Section 439 Cr.pc High courts and Sessions Court grant bail.

 Interim bail- Interim bail is awarded by a direct order of the Court to temporarily release an accused for a short term. The Courts noticed that interim bails are being misused in many cases and have decreased the number of interim bails issued.   

 Anticipatory bail:

An anticipatory bail is defined under code of criminal procedure of 1973. However, Section 438 of the code deals with the anticipatory bail in India. ‘Anticipatory’ as the word suggests that when any person apprehends that he may be arrested on an accusation of having committed a non-bailable offence, he may approach the High Court/ Session Court for a direction that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and by that it acts as a preventive measure for the accused. The guardians of the Law had to come with this legislation or bare minimum provisions that could deal with the issue of anticipatory bail. As, the so-called influential people tend to take advantage of this provision and detain their nemesis into false cases with the purpose to create nuisance in their lives and defame them by putting them behind the bars.

Necessities required for granting the Anticipatory Bail:

The High Court and the Sessions Court especially while granting an anticipatory bail have to keep certain conditions in the mind. These conditions are mentioned in the Section 438(2). The following are the conditions for an anticipatory bail:-

 The applicant must be present whenever and wherever called upon by the court for police investigation as required by the police officer.  The applicant shall not leave the country without the court’s consent. The applicant must submit his personal details like contact number, permanent address and a subsidiary address to the concerned police officer. 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. The charges framed against the applicant are vague and are generic in nature.

Can a person while residing outside India file for an anticipatory bail?
The Hon’ble Kerala High Court in Vijay Babu v. State of Kerala and Anr. (2022) held that a person can file for a pre-arrest bail if residing outside India. Section 438 of CRPC 1973, does not include a provision which specifically states that a person residing outside India can’t 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 case, a person residing outside India, there is a possibility that he can be arrested under Sections 188 of CrPC and Sections 4 of IPC, the statute empowers such a person to seek protection from such kind of arrest. According, to the single bench of Judge bench of Hon’ble Justice Bechu Kurian Thomas, a bail application can be filed by a person residing outside India on the condition that “The applicant must be present in the country i.e., within the court’s Jurisdiction prior to the final hearing in order for the court to enforce proper conditions as per the statute.  

Judicial pronouncements:

In Anu Mathew v. State of Kerala- The Hon’ble Judge while considering the Anticipatory Bail has referred the case to Division Bench by discussing the various case laws which are as given below: “In Shafi Vs State of Kerala: A person sitting in another country cannot file an application under S.438 of the CrPC before the Court apprehending arrest. There are no averments in the Bail Application that there is an apprehension of arrest to the petitioner in the country w ere he is now residing based on the accusation in this case. Even in such a situation, an application under S.438 CrPC cannot be entertained by this court. A bail application under S.438 CrPC cannot be filed before this Court by the petitioner sitting in an armchair in a foreign country. He is not entitled an order under S.438 CrPC in such a situation. Jurisdiction of this Court under S.438 CrPC is discretionary” The Learned Judge has referred the following issues to Higher Bench, If a person who is an accused in a case absconded from India and went abroad after fully knowing about the registration of a non-bailable offence against him, and thereafter if he file bail application under Section 438 CrPC whether the bail court should entertain such a bail application? When an accused went abroad, after knowing that he is an accused in a nonbailable offence, and thereafter filing a bail application before this Court, whether he is entitled interim bail as per Section 438(1) CrPC? Whether the bail court has jurisdiction to pass orders restraining the Police in arresting accused without passing interim bail orders.

In Princy Nijoy v. UOI- While considering the bail application, the Honourable High Court has discussed the following case laws: “In Anu Mathew vs. State of Kerala [2023(3) KHC 151], a Division Bench of this Court has succinctly laid down the law that if an accused has absconded from India and gone abroad knowing fully well about the registration of a crime in respect of a non-bailable offence, though he may technically have a locus standi to maintain an application for pre-arrest bail, but, if the Court is convinced that the accused had absconded and fled away from the Law Enforcement Agencies, it would not be right and proper for the Court to exercise its jurisdiction under Section 438 of the Code. In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) SCC 694] the Hon’ble Supreme Court has held as follows: “No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. 
In Sibbia case [(1980) 2 SCC 565: 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. In Jai Prakash Singh v. State of Bihar and Anr.[(2012) 4 SCC 379] the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. The Hon’ble Judge held that, on consideration of the facts, the materials placed on record, the rival submissions, the law referred, and on comprehending the nature, seriousness and gravity of the offences alleged against the petitioner, that the petitioner is abroad for the last more than two years, and further that the petitioner custodial interrogation is necessary and recovery is to be effected, I am not inclined to exercise the discretionary powers of this Court under Sec.438 of the Code and grant an order of pre- arrest bail in favor of the petitioner”. 


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. The Hon’ble Supreme Court of India has emphasised on this point time and again through a catena of judgements. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely. That being the case as far as an individual who flees the Country to escape from clutches of law and seek the relief of Section 438 from a foreign country needs to be adjudged on case to case basis with regard to nature of offences alleged and various other facts. Further, we may await for the Higher Bench ruling on the said fact for settlement of the issue.

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Written by- Parvathy P.V.




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