IMPORTANT POINTS
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.

ORDER :

This Bail Application is filed under Section 438 of the Criminal Procedure Code.

2. The petitioner is the accused in Crime No. 1167 of 2018 of Nedumangad Police Station. The case is registered against the petitioner, alleging offences punishable under Sections 406 and 420 IPC.

3. The case is registered based on a complaint filed before the Director General of Police(DGP), Kerala, by one Muhammed Shameem. The DGP, Kerala, marked that complaint to the DySP., District Crime Branch for enquiry. Later the DySP., District Crime Branch forwarded his enquiry report along with the original complaint to the DySP., Nedumangad directing him to register an FIR in this matter. Accordingly, the case is registered.

4. The prosecution case is that the complainant invested an amount of Rs.3 crores in a business enterprise named IDL Building Material in Riyadh, Saudi Arabia and that the petitioner was managing that business. The complainant alleges that the petitioner had promised to return the entire amount of Rs.3 crores along with 60% of the total profits made in the business within two years of the commencement of the business. It is stated that the petitioner paid Rs.20 lakhs as profit in the first six months, and after that, the petitioner failed to fulfill his promise and hence committed the crime. Therefore, the complaint is filed.

5. It is admitted in the Bail Application that the petitioner is employed at Riyadh in Saudi Arabia. In paragraph 7 of the Bail Application, it is stated like this:

“7. Now the petitioner is granted his regular leave by his employer and is intending to visit his native place and his family. If the petitioner is arrested in connection with the above said crime, it will cause irreparable loss and hardship to the petitioner and his family”.

6. It is clear from the above averments in the bail application that this Bail Application under Section 438 is filed when the petitioner was in Riyadh, Saudi Arabia. Counsel for the petitioner conceded that the petitioner is even now in Riyad, Saudi Arabia. Nothing is mentioned in the Bail Application to show that on which date the petitioner is coming back to India. A vague averment is made to the effect that he wants to visit the native place and for which, he wanted an order under Section 438 of the Cr.P.C. A person sitting in another country cannot file an application under Section 438 of the Cr.P.C before this Court apprehending arrest. There are no averments in the Bail Application that there is an apprehension of arrest to the petitioner in the country where he is now residing based on the accusation in this case. Even in such a situation, an application under Section 438 Cr.P.C cannot be entertained by this court. A bail application under Section 438 Cr.P.C cannot be filed before this court by the petitioner sitting in an armchair in a foreign country. He is not entitled an order under section 438 Cr.P.C in such a situation. Jurisdiction of this Court under Section 438 Cr.P.C is discretionary. This court considered this point in Souda Beevi V. Sub Inspector of Police (2011 (4) KLT 52). The relevant portion of the judgment is extracted hereunder.

“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. Sub-section (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