Law is a dynamic field that constantly adapts to the wants and demands of a common man, better described as improvising and taking shape in order to meet those needs. A statutory crime is any act or conduct that is now illegal and is punishable by law. Bailable and non-bailable offences are the two categories into which the term “offence” is subdivided. Bail is defined in the CrPC 1973. However, it could also mean the provisional release of an accused person with some form of security attached, on the understanding that the subject will show up in court whenever and wherever it is summoned. In essence, pre- arrest bail i.e; anticipatory bail is governed under Section 438 of the Code of Criminal Procedure. A procedural provision pertaining to an individual’s personal liberty is Section 438, which is guaranteed by Article 21 of the Constitution against unjust, unfair, and unjustified deprivation.

Pre-Arrest Bail:

A provision of the Code of Criminal Procedure 1973 defines an anticipatory bail. However, Section 438 of the code addresses the application of anticipatory bail in India. As the word “anticipatory” implies, anyone who fears that they could be arrested on the grounds of a non-bailable offence may apply to the High Court or Session Court for a directive. The court may, if it deems appropriate, order that, in the event of an arrest, the accused be released on bond, serving as a preventive measure. It was necessary for the guardians of the law to enact this legislation or at least the bare minimum of provisions to address the problem of anticipatory bail.

Pre-Arrest Bail for Accused Residing Abroad:

Pre-arrest bail for foreign nationals is a fascinating legal notion that combines constitutional rights, jurisdictional complexity, and real-world law enforcement difficulties. In the contemporary globalised world, when people routinely travel or live abroad, it is critical to protect the integrity of legal systems while guaranteeing access to justice.

In many nations, the right to bail is seen as an essential component of due process and personal liberty. It allows an accused person to be released pending trial by giving monetary or other guarantees that they will appear in court as scheduled. However, the availability of bail might vary based on the gravity of the alleged offence, the individual’s criminal history, and the risk of flight. When the accused lives abroad, the situation becomes more complicated. Jurisdictions frequently have laws and procedures in place to address such issues, but they might vary greatly from one country to another. In certain nations, extradition treaties govern the process of returning the accused to stand trial, whereas others rely on mutual legal assistance agreements.

Conditions required for granting the Anticipatory Bail:

  1. Likelihood of Appearance: Courts often evaluate the accused’s flight risk when determining whether to grant bail. This determination may be influenced by factors such as community relationships, family, employment, and financial resources. Individuals residing abroad may be able to secure pre-arrest bail by establishing ties to the jurisdiction where the offence happened or other compelling grounds for their return.
  2. Severity of Offense: When determining bail, courts examine the gravity of the alleged offence. Pre-arrest bail may be granted in circumstances involving minor offences or where the accused poses a low risk to public safety, even if the individual lives overseas. However, for significant offences such as violent crimes or those involving national security concerns, courts may be more reluctant to grant bail to those residing abroad.
  3. Legal Mechanisms for Cooperation: The existence of extradition treaties or mutual legal assistance agreements between the jurisdiction where the offence occurred and the country where the accused resides can have a substantial impact on whether or not pre-arrest bail is granted. If strong legal safeguards are in place to assure the accused’s eventual return for trial, judges may be more willing to grant bail.

Kerala High Court in Vijay Babu v. State of Kerala and Anr. (2022)

It was held that A person residing outside India can indeed file for pre-arrest bail under Section 438 of the Code of Criminal Procedure (CRPC) 1973. The provision does not expressly exclude individuals residing abroad from seeking anticipatory bail. With advancements in technology and communication, it is possible for individuals to be apprehended even outside the country for offenses committed in India.

In situations where a person residing outside India faces the prospect of arrest under Sections 188 of the CRPC and Sections 4 of the Indian Penal Code (IPC), the law allows such individuals to seek protection through anticipatory bail.

According to a ruling by the single bench of Hon’ble Justice Bechu Kurian Thomas, a person residing abroad may file a bail application. However, it is a condition that the applicant must be present in the country, within the court’s jurisdiction, prior to the final hearing. This requirement ensures that the court can enforce proper conditions as per the statute.


Anticipatory bail serves as a preventive measure for individuals who fear arrest, protecting them from potential police abuse and ensuring fairness within the legal system. It also acts as a shield against powerful individuals involved in a case. The Hon’ble Supreme Court of India has repeatedly emphasized this aspect through a series of judgments.

Anticipatory bail is a means to safeguard an individual’s liberty. It should not be seen as a license to commit crimes or as protection against any and all accusations, whether likely or unlikely. Therefore, when an individual flees the country to evade legal proceedings and seeks relief under Section 438 from a foreign jurisdiction, each case must be evaluated based on the nature of the alleged offenses and other relevant factors.

~Arisha Qureshi (Legal Intern)

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