IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 2ND MAY 2008 / 12TH VAISAKHA 1930 Crl.MC.No. 1799 of 2008 --------------------------------- CP.212/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA ........................................... PETITIONER: ACCUSED -------------------------------- SHAJI, S/O. JOSE KANJANASSERIL HOUSE, THIRUMOOLAPURAM, THIRUVALLA. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR SRI.T.P.PRADEEP RESPONDENTS: ---------------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.1799 of 2008 ---------------------------------------- Dated this the 2nd day of May 2008 O R D E R The petitioner faces indictment in a prosecution under the Kerala Abkari Act. Investigation is complete. Final report has already been filed. Committal proceedings has been registered. The petitioner has not been arrested or released on bail so far. Reckoning him as an absconding accused, coercive processes have been issued against the petitioner by the learned Magistrate. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. His absence earlier was not wilful or deliberate. The petitioner is willing to surrender before the learned Magistrate and seek regular bail. But he apprehends that his application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. He, therefore, prays that directions under Section 482 Cr.P.C. may be issued to the learned Magistrate to release the petitioner on bail when he appears and applies for bail. 3. In Bharat Chaudhary v. State of Bihar [AIR 2003 SC 4662] it is well settled that powers under Section 438 Cr.P.C can be invoked even in favour of the accused who apprehends arrest in execution of a non bailable warrant issued in a pending Crl.M.C.No.1799/08 2 proceedings. But even for that, sufficient and satisfactory reasons must be shown to exist to justify the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. I do not find any such reasons in this case. 4. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate, the circumstances under which he could not earlier appear before the learned Magistrate. I find absolutely no reason to assume that the learned Magistrate would not consider the application for bail to be filed by the petitioner on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific directions appear to be necessary. Sufficient general directions have been issued in Alice George vs. Deputy Superintendent of Police [2003(1)KLT 339]. 5. In the result, this Criminal Miscellaneous Case is dismissed but with the specific observation that if the petitioner surrenders before the learned Magistrate and applies for bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself. (R.BASANT, JUDGE) jsr Crl.M.C.No.1799/08 3 Crl.M.C.No.1799/08 4 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007