A fundamental question arises for consideration in this context. Can a person who is not available in India file an application for anticipatory bail under Section 438 of the Code of Criminal Procedure?
The decision in Gurbaksh Singh Sibbia v. State of Punjab MANU/SC/0215/1980 : A.I.R. 1980 S.C. 1632 : (1980) S.C.C. 565 was followed in Sidharam Satlingappa Mehetre v. State of Maharashtra MANU/SC/1021/2010 : (2011) 1 S.C.C. 694.
16. In Gurbaksh Singh Sibbia v. State of Punjab MANU/SC/0215/1980 : A.I.R. 1980 S.C. 1632 : (1980) S.C.C. 565, the Supreme Court considered the conditions to be satisfied before the grant of anticipatory bail. It was held:
35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has 'reason to believe' that he may be arrested for a non-bailable offence. The use of the expression 'reason to believe' shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. S. 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. 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 accusations, likely or unlikely.
17. 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. Subsection (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.
IN THE HIGH COURT OF KERALA
B.A. Nos. 5358 and 5620 of 2011
Decided On: 17.08.2011
Appellants: Souda Beevi
Vs.
Respondent: S. I. of Police, Pallickal Police Station and another
Hon'ble Judges/Coram:
Mr. Justice K.T. Sankaran
