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Anticipatory Bail Application u/s 438 maintainable even if accused is outside the country



Sonal Bhargava | Edited by Prabhat Bandhulya

While granting interim anticipatory bail to actor Vijay Babu in a rape case on Tuesday, the Kerala HC noted that the accused's absence from the country did not prevent his anticipatory bail claim from being considered.

The Supreme Court had clearly recognised in Sushila Aggarwal & Ors v. State that every individual right protected under Article 21 of the Constitution can be stripped only through legal procedures. Significantly, the Constitutional Bench stated that Section 438 is one of these procedures, and that courts should be wary of imposing unwarranted constraints on the scope of Section 438, especially where the legislature has not done so.

As a result, the court determined that the ruling in Souda Beevi's case was impliedly overruled. The Judge went on to say that because the decision in S.M.Shaffi's case did not take into account the Sushila Aggarwal ruling, it may be considered a judgement sub silentio (implied but not expressly stated).

As a result, until June 2, the accused has been granted interim protection from arrest.

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