Kerala HC On Pre-Arrest Bail From Abroad
The Kerala High Court has held that an accused filing a pre-arrest bail application from abroad must disclose that fact in the application and undertake to return to India when directed by the Court. Holding that concealment of that fact by itself justified refusal of extraordinary relief, Justice Dr. Kauser Edappagath dismissed Shahir Basheer v. State of Kerala, Bail Appl. No. 1536 of 2026, arising from Crime No. 73/2026 of Chokli Police Station, Kannur, by order dated 25 March 2026.
The bail application was filed by Shahir Basheer, aged 31 years, son of Basheer, under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking pre-arrest bail. The respondent was the State of Kerala, represented by the Public Prosecutor. The petitioner was represented by Sri. M.P. Priyeshkumar and Sri. Shanavas Nalakath Randupurayil, while Sri. K.A. Noushad, Senior Public Prosecutor, appeared for the State.
According to the prosecution case, the applicant and the de facto complainant were in love while studying in college. It was alleged that in March 2017, the applicant made her believe that he would marry her and, on the pretext of discussing the matter with his parents, took her to his house at Olavilam, intoxicated her and committed rape on her. The prosecution further alleged that he recorded the sexual acts on his mobile phone and thereafter, on several occasions up to 21.07.2025, repeatedly had sexual intercourse with her at different places by threatening that the photos and videos recorded on the phone would be published.
The offences alleged against the applicant were under Sections 64(1), 64(2)(m), 69, 143(1)(f) and 143(2) of the Bharatiya Nyaya Sanhita, 2023, Section 66E of the Information Technology Act, 2000, and Section 376 of the Indian Penal Code, 1860.
Counsel for the applicant submitted that the applicant was innocent and had been falsely implicated in the case. It was argued that there were no materials on record connecting him with the alleged crime and that he was therefore entitled to bail. The learned Senior Public Prosecutor, on the other hand, submitted that the alleged incident occurred as part of the applicant’s intentional criminal acts, and that if he were released on bail at that stage, it would affect the course of the investigation.
The Court observed that the law relating to grant or refusal of pre-arrest bail is well settled, and that such relief cannot be granted as a matter of course. Justice Edappagath held that the power under Section 482 of BNSS can be exercised only when a special case is made out, with reasons recorded. On perusal of the case diary, the Court found that the accusation against the applicant was “very serious in nature” and prima facie disclosed a premeditated criminal act on his part.
The Court then noted the report that the applicant was abroad and considered the law laid down by a Division Bench of the Kerala High Court in Anu Mathew v. State of Kerala [2023 (3) KHC 151]. Referring to that judgment, the Court observed that the mere fact that an accused was in a foreign country when filing an application for pre-arrest bail under Section 438 CrPC does not make the application not maintainable. However, when an accused abroad files such an application, the Court may examine the factual submissions of both sides to determine whether the accused has a genuine fear of arrest in a non-bailable offence and whether discretion should be exercised in his favour.Justice Edappagath further observed that it is the primary duty of an accused applying for pre-arrest bail from abroad to disclose that he is abroad, and to undertake to come to India when directed by the Court. The Court held that failure to disclose in the bail application that the accused was abroad at the time of filing would itself disqualify him from obtaining the extraordinary relief of pre-arrest bail. The order further states that 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 CrPC / Section 482 BNSS in his favour.
Applying that principle, the Court found that the bail application did not mention that the applicant was abroad at the time of filing. Holding that this concealment alone justified dismissal of the plea, the Court refused to grant pre-arrest bail and dismissed the application.
