Accused Must Disclose Being Abroad In Pre-Arrest Bail Plea; Concealment Alone Ground To Deny Relief: Kerala High Court

The Kerala High Court recently clarified that anticipatory bail can be denied solely on the ground that an accused fails to disclose that he is aboard at the time of filing the application.Dr. Justice Kauser Edappagath relied on the Division Bench decision in Anu Mathew v. State of Kerala and observed:“it is the primary duty of an accused applying for pre-arrest bail from abroad in a court in India to disclose that he is abroad. He must also undertake to come to India when directed by the Court. The failure to disclose in the bail application that the accused was abroad at the time of filing the application alone would disqualify him from obtaining the extraordinary relief of pre-arrest bail. In other words, if an accused conceals that he was abroad when filing the application, that alone is enough for the Court to decline to exercise its discretion under Section 438 of Cr. P.C./Section 482 of BNSS in his favour.”The applicant before the Court was the sole accused in a crime alleging offences punishable under Sections 64(1), 64(2)(m) [Punishment for rape], 69 [Sexual intercourse by employing deceitful means, etc.], 143(1)(f) and 143(2) [Trafficking of person] of the Bharatiya Nyaya Sanhita, 2023; Section 66E [Punishment for violation of privacy] of the Information Technology Act, 2000 and Section 376 [Punishment for rape] of the Indian Penal Code, 1860.The prosecution allegation is that in 2017, the applicant took the de facto complainant to his house on the pre-text of discussing their marriage with his parents, got her intoxicated and committed rape on her. It is also alleged that he recorded the sexual acts on his phone and then, committed sexual intercourse with her for years thereafter by threatening that he would publish these recordings.The applicant's counsel submitted that the applicant was innocent and was falsely implicated in the case. It was also contended that there were materials to connect him with the crime. However, the prosecution opposed the bail and argued that his release would affect the investigation.The Court remarked that pre-arrest bail cannot be granted as a matter of course and a special case must be made out with sufficient reasons:“The law regarding the grant or refusal of pre-arrest bail is well settled. Pre-arrest bail cannot be granted as a matter of course. The power under Section 482 of BNSS could be exercised only when a special case is made out, that too, recording reasons thereof. Perusal of the case diary reveals that the accusation made against the applicant is very serious in nature, and it prima facie shows a premeditated criminal act on his part.”Taking note of the fact that the applicant was abroad while filing the plea and this fact was not disclosed in his bail application, the Court opined that this alone was sufficient ground to deny him bail.Thus, the Court dismissed the bail application.Case No: Bail Appl. No. 1536 of 2026Case Title: Shahir Basheer v. State of Kerala Citation: 2026 LiveLaw (Ker) 202Counsel for the petitioner: M.P. Priyeshkumar, Shanavas Nalakath RandupurayilCounsel for the respondent: K.A. Noushad – Sr. Pubilc ProsecutorClick to Read/Download Order

Accused Must Disclose Being Abroad In Pre-Arrest Bail Plea; Concealment Alone Ground To Deny Relief: Kerala High Court

K. Salma Jennath

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Accused Must Disclose Being Abroad In Pre-Arrest Bail Plea; Concealment Alone Ground To Deny Relief: Kerala High Court

K. Salma Jennath

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