From the esteemed team at NRI LEGAL CONSULTANTS, Advocates Hashandeep Sidhu and Jaspreet Benipal skilfully represented two applicants in a significant application for anticipatory bail before the Sessions Court in Yamuna Nagar. The crux of their argument emphasized that residing overseas does not restraint an individual from filing an anticipatory bail application, provided there is a reasonable apprehension of arrest. In fortifying their stance, the learned counsel drew upon the landmark judgment of “Sushila Aggarwal and Others Vs State (NCT of Delhi)” by the Hon’ble Supreme Court. This precedent underscored that courts are not at liberty to impose any additional restrictions on Section 438 of the Criminal Procedure Code (Cr.P.C.) beyond what the legislature has explicitly outlined. The Supreme Court’s observations advocate for a broader, more liberal interpretation of Section 438 Cr.P.C., steering clear of unnecessary limitations. Furthermore, the attorneys enriched their arguments by referencing pertinent decisions from the Hon’ble High Court of Punjab and Haryana and The Hon’ble Supreme Court. After thorough consideration of the counsels’ submissions, the Sessions Court of Yamuna Nagar delivered justice by granting anticipatory bail to the applicants who were residing abroad at the time of filing the application for anticipatory bail, thereby affirming the principles laid down in the cited precedents.
To ensure our readers are well-informed and equipped with the necessary legal knowledge, the remaining contents of this blog will discuss the pertinent laws regarding Anticipatory Bail.
Our aim is to explain the legal framework, processes involved, and the rights of individuals in seeking Anticipatory Bail. This insight is crucial for understanding how one can proactively secure their rights in anticipation of possible legal proceedings, thereby reinforcing our commitment to educating and empowering our audience with valuable legal acumen.
Table of Contents
What is Anticipatory Bail?
The expression “Anticipatory Bail” is not explicitly defined under the Code of Criminal Procedure,1973. “Anticipatory Bail” simply means an order passed by the competent court to release a person on bail in the event of his arrest. It is a legal remedy wherein a person, who has a reasonable apprehension of being arrested on allegations of having committed a non-bailable offence, can approach the appropriate Court and seek bail in anticipation of arrest.
“Apprehension of Arrest”
The use of the expression ‘reason to believe’ under sub section (1) of Section 438 shows that the person who seeks anticipatory bail in apprehension of arrest should have reasonable grounds for such apprehension. It should be based on concrete facts and not vague un-spelt apprehensions. Mere fear is not belief. Therefore, the application for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant apprehends his arrest along with his version of the facts.
Application for anticipatory bail filed by a person residing abroad maintainable or not.
Time and again various courts have given contradicting judgements regarding whether an application of anticipatory bail filed by a person residing abroad is maintainable or not.
However, Section 438 Cr.P.C. does not include a provision stating that a person residing abroad cannot apply for anticipatory bail.And the Hon’ble Supreme Court in the case Sushila Aggarwal and Others Vs State (NCT of Delhi) had observed that the courts cannot add to Section 438 of Cr.P.C., any restriction that the legislature had not thought fit to incorporate.
Now coming to the question regarding the maintainability of the application of anticipatory bail filed by a person residing abroad or an NRI, the answer is that mere fact that an accused person or an NRI who happens to be in a foreign country, at the time he institutes an application for pre-arrest bail will not be a ground to hold that such an applicant cannot legally maintain his plea for pre-arrest bail. The fact is that the Hon’ble Supreme Court had observed that the provisions of Section 438 Cr.P.C. have to be interpreted in a more liberal way rather than in a restrictive manner.
Can Anticipatory Bail be granted to an NRI or to an accused person who is residing abroad at the time of filing of the said application?
Regarding the grant of Anticipatory Bail to an NRI or to an accused person who is residing abroad at the time of filing of the said application, in appropriate cases, if the Court finds that the case is free of complications and the case of the accused, who is abroad, fulfils the parameters and factors for grant of bail under Section 438(1), then the Court will also have the discretion to dispose the main application granting bail, subject to strict condition, including the condition that the accused should come over to the country within a specified reasonable time limit to cooperate with the police investigation and shall not thereafter leave India, without the prior permission of the jurisdictional court, etc. That in such cases, the Court will also have the power to lay down a further condition that if the accused does not come to India, within the above specified time limit, then the bail so granted would stand vacated on expiry of the said time limit. That such a power is ancillary and incidental to the primary objectives of grant of bail which are to ensure the cooperation of the accused with the investigation and trial, etc.
In such cases, the conduct of the accused, seriousness of the allegations along with the gravity of the offence committed is of paramount importance. If the conduct of the accused has been bonafide throughout and only general and vague allegations have been levelled against the accused, the courts may grant the concession of Anticipatory bail depending upon the facts and circumstances of the case and subject to imposition of certain conditions which may differ from case to case.
RELEVANT CASES:-
⧭Kxxxxxxxxx vs State of Punjab D/d. 15.9.2022
In the above case the Hon’ble Punjab And Haryana had granted Ad-interim anticipatory bail to the petitioner (who was an NRI and was abroad at the time of filing of the present bail application)) in the FIR registered under section 306, 34 of IPC.
In this case the reliance was placed upon the judgement of Hon’ble Gujarat High Court in CRM No.9041 of 2012, titled as “HiteshkumarVadilal Shah v. State of Gujarat” decided on 28.06.2012, to submit that there is no bar for a person, who is residing abroad to file for anticipatory bail application, reasonable apprehension of arrest is the only necessity for filing the same.
⧭AxxMaxxxw vs State of Kerala
BAIL APPL. NO.4xx1 OF 2022
In the above case the Hon’ble Kerala High Court had upheld the decision of the learned Single Judge of granting bail to the applicant. The Hon’ble High Court had stated that “After hearing both sides, we are of the view that in the facts of this case, the applicant/accused has not shown any proclivity or the remotest intention to abscond or flee away from the long arms of the law. She was in Kuwait, even prior to the alleged commission of the offence and even thereafter. She was willing to come to India and to cooperate with the Police. So, according to us, the learned Single Judge has rightly granted interim bail to her.”
⧭AxxMaxxxw vs State of Kerala
BAIL APPL. NO.4xx1 OF 2022
The above case was taken up before the double bench of the Hon’ble Kerala High Court and the Hon’ble High Court had held that “Mere fact that an accused happens to be in a foreign country, at the time he institutes an application for pre-arrest bail will not be a ground to hold that such an applicant cannot legally maintain his plea for pre-arrest bail.”
⧭Rxxxxxxxxx Vs State of Haryana D/d. 06.02.2024
In the above case the Learned Session Judge had granted ad-interim anticipatory bail to the applicants in the FIR registered under section 506,406, 498A of IPC. The court had observed that “even though applicants/petitioners are stated to have gone abroad to visit their son, however, applicants have already booked flight to come to India to join investigation in second fortnight of February, 2024.and in view of the observations of our own Hon;ble High Court in Kulwinder Kaur Vs. State of Punjab (Supra) case, there is no bar for a person residing abroad to file for anticipatory bail application and reasonable apprehension of his arrest is the only necessity for filing the same, which implies that present bail application is very much maintainable. As per the police report/reply, look out circular (LOC) is stated to have been got issued qua the applicants/petitioners. Keeping in view the entirety of facts & circumstances noticed hereinabove, this court does not find it appropriate to curtail the liberty of the applicants/petitioners without affording them an opportunity to join investigation and thus, without commenting anything on the merits of the matter, applicants/petitioners are admitted to ad-interim anticipatory bail on their furnishing personal bonds/surety bonds to the entire satisfaction of the arresting/investigating officer and applicants/petitioner are directed to join the investigation after coming to India in second fortnight of February, 2024 and as and when called by the investigation officer thereafter and further subject to the conditions as specified under Section 438 (2) Cr.P.C.
The court had given paramount importance to the fundamental right to liberty and thus had granted ad-interim anticipatory bail to the applicants.