The Single Bench of Justice P.V. Kunhikrishnan has referred to the Chief Justice of the High Court the question whether a bail application under Section 438 Code of Criminal Procedure (CrPc) can be entertained when the accused person has absconded from India and went abroad.

The Court was adjudicating upon an anticipatory bail application. In this case, the petitioner was charged with offences punishable under Sections 11 and 12 of the Protection of Children from Sexual Offence Act, 2012, Section 3 of the Indecent Representation of Women (Prohibition) Act, 1986, Section 354A, 354D, 292A, 290, 507, 503, 465, 466, 500, 509 IPC and Section 67, 66(A) and 66(E) of the Information Technology Act, 2000.

When this bail application came up before the court, it was submitted that the petitioner was not in India. Therefore the Court dismissed the bail application as not maintainable in the light of the judgment of the Court in Shafi S.M. v. State of Kerala and Another where it was held that a bail application under Section 438 Cr.P.C. need not be entertained by the Court when the petitioner was sitting in an armchair in a foreign country.

However, the Court was informed about a judgment where the judgment in Shafi's case (supra) was distinguished. That was a judgment delivered in Vijay Babu v. State of Kerala. In this case, an interim order was passed on May 31, 2022, restraining the arrest of Vijay Babu.

In the case of Vijay Babu, it was held that an application for pre-arrest bail can be filed even by a person residing outside the country.

However, the Court disagreed with this observation. "When in Shafi's case (supra) this Court clearly stated that an application under Section 438 Cr.P.C. cannot be filed before this Court by an accused sitting in a foreign country, the learned Single Judge ought not have decided the matter without referring the same to the Division Bench", the Court observed.

The Court held that the Court had ample power to refuse bail because the power under Section 438 CrPc was a discretionary jurisdiction.

"Such persons need not be invited to the country by a court of law invoking the powers of interim bail under section 438 Cr.P.C is my considered opinion. It is the duty of the prosecuting agency to book him. Since a different view is taken by the learned Judge in Vijay Babu's case (supra), I think the matter has to be decided by a Division Bench of this Court", the Court opined.

The Court further observed that "If an accused in a case left India after knowing that a case with grievous offences is registered against him and filing a bail application before the High Court after leaving India is not entitled an order not to arrest especially when there is no such power as per Section 438 Cr.P.C. Even interim bail is not deserving to such persons because the jurisdiction under Section 438 Cr.P.C. is discretionary."

The Court directed reconsideration of the following points-

• If a person who is an accused in a case absconded from India and went abroad after fully knowing about the registration of a nonbailable offence against him, and thereafter if he file bail application under Section 438 Cr.P.C, whether the bail court should entertain such a bail application? 2

• 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) Cr.P.C?

• Whether the bail court has jurisdiction to pass orders restraining the Police in arresting accused without passing interim bail orders as per Section 438(1) Cr.P.C?

As far as the case was concerned the Court noted that the petitioner was in India and there was no allegation in this case that the petitioner had left India after knowing about the registration of this case. Therefore, the Court granted interim bail to the petitioner.

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