IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 Bail Appl..No. 1483 of 2008() ----------------------------- CRIME NO. 380/07 OF EDACHERY POLICE STATION PETITIONER/ACCUSED NO.4 ---------------------------------------- SAHEER, S/O.ABOOBACKER, AGED 29 YEARS, CHILLIYIL HOUSE, P.O.CHOMBALA, VATAKARA, KOZHIKODE DISTRICT. BY ADV. SMT.LATHA PRABHAKARAN RESPONDENTS: COMPLAINANT-STATE ------------------------------ STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/03/2008, THE COURT ON 03/03/2008 PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1483 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2008 O R D E R The petitioner faces indictment in a prosecution for offences punishable, inter alia, under Sections 326 and 307 I.P.C. At the crime stage the petitioner was not arrested at all. According to the petitioner he never knew that there was any intention to array him as an accused in this crime. Now the petitioner has received summons from the Magistrate directing him to appear as an accused in C.P. 2 of 2008 on 7.3.2008. 2. According to the petitioner he is absolutely innocent. He is not in any way connected with the crime. He is willing to appear before the learned Magistrate in response to the summons issued 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. It is in these circumstances prayed that appropriate directions may be issued under Section 438 Cr.P.C. in his favour. B.A.No. 1483 of 2008 2 3. It is trite after the decision in Bharat Chaudhary v. State of Bihar (AIR 2003 SC 4662) that powers under Section 438 Cr.P.C. can be invoked even in favour of a petitioner, who apprehends arrest in the pending case on the strength of a non-bailable warrant issued by the court. Even that is not by itself sufficient to justify the invocation of the jurisdiction under Section 438 Cr.P.C. I am unable to find any compelling reasons which would justify invocation of the jurisdiction under Section 438 Cr.P.C. 4. It is certainly 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 the application for bail to be filed by the petitioner when he surrenders before the learned Magistrate, on merits, in accordance with law and expeditiously. No special or specific direction appears to be necessary. Sufficient general directions have already been issued by this Court in the decision in Alice George v. Dy.S.P. of Police (2003 (1) KLT 339). B.A.No. 1483 of 2008 3 7. This application is accordingly dismissed with the specific observation that the petitioner's application for regular bail must be considered by the learned Magistrate and pass orders on merits, in accordance with law and expeditiously, on the date of surrender itself. I do note that the learned Magistrate has already exercised his discretion under Section 204 Cr.P.C. to issue only summons and not a warrant. I must also assume that the learned Magistrate must have applied his mind and take an informed decision on that aspect. Having issued a summons to the petitioner to appear, I think it unlikely that an accused person would be detained in custody thereafter unless compelling reasons are there. The decision in Sukumari v. State of Kerala (2001 (1) KLT 22) has considered this aspect of the matter. I need only mention that the learned Magistrate must consider the matter in the light of the decision in Sukumari also. (R. BASANT) Judge tm