IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 Bail Appl..No. 1979 of 2008() ----------------------------- CP.170/2007 of J.M.F.C.,TALIPARAMBA Cr.no.384/02 OF SREEKANDAPURAM POLICE STATION .................... : PETITIONER/ACCUSED ----------------------------------- KUNHUMON @ JOSEPH, S/O.OUSEPH, AGED 59 YEARS, KODINHAMKUNNEL HOUSE, KOTTOORVAYAL, NEDIYENGA AMSOM, KANNUR DISTRICT. BY ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI RESPONDENTS: COMPLAINANT ------------------------ STATION HOUSE OFFICER, SREEKANDAPURAM POLICE STATION, KANNUR DISTRICT, (CRIME NO.384/02 OF SREEKANDAPURAM POLICE STATION, KANNUR DISTRICT), REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.1979 of 2008 ------------------------------------- Dated this the 1st day of April, 2008 ORDER Application for anticipatory bail. Petitioner is the 2nd accused. He faces allegations under the Explosive Substances Act. A quarry was run in his property using explosive substances without requisite authority. This is the crux of the allegations. The alleged incident took place on 14.02.08. Investigation is complete. Final report has already been filed. Cognizance has been taken. Committal proceedings has been registered. The petitioner has not been arrested so far at the crime stage or later. The learned Magistrate has issued coercive processes reckoning the petitioner to be an absconding accused. Such processes are chasing the petitioner now. 2. According to the petitioner, he is absolutely innocent. His absence earlier was not wilful or deliberate. He is willing to surrender before the learned Magistrate and apply for bail. But he apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. It is therefore prayed that directions B.A.No.1979 of 2008 2 under Section 438 and/or 482 Cr.P.C may be issued in favour of the petitioner. 3. After the decision in Bharat Chaudhary v. State of Bihar [A.I.R 2003 S.C 4662], it is well settled that powers under Section 438 Cr.P.C can be invoked even in favour of an accused who apprehends arrest in execution of a non bailable warrant issued in a pending 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 have no reason to assume that the learned Magistrate would not consider such application on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions have already been issued in Alice George v. The Deputy Superintendent of Police [2003(1) KLT 339]. B.A.No.1979 of 2008 3 5. This application is, in these circumstances, dismissed, but with the specific observation that if the petitioner appears 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 and expeditiously - on the date of surrender itself, in the light of the decision in Sukumari v. State of Kerala [2001(1) K.L.T 22]. (R.BASANT, JUDGE) rtr/-