IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 Bail Appl..No. 938 of 2008() ---------------------------- CP.56/2007 of J.M.F.C.-II, CHERTHALA CRIME NO.256/05 OF MUHAMMA POLICE STATION .................... PETITIONERS : ACCUSED ------------------------ 1. SAIJU, AGEED 27 YRS, S/O.PONNAPPAN KALLUPURACKAL HOUSE, WARD NO.3 MUHAMMA PANCHAYATH, CHERTHALA, ALAPPUZHA DISTRICT. 2. JOSHYMON, AGED 26 YRS., S/O.DIVAKARAN KALLUPURACKAL HOUSE, WARD NO.3 MUHAMMA PANCHAYATH, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.K.RAMANATHAN RESPONDENTS: ------------- 1. THE SUB INSPECTOR OF POLICE MUHAMMA POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A.NO. 938 OF 2008 ------------------------------------------------- Dated this the 20th day of February, 2008 ORDER Application for anticipatory bail. The petitioners are accused 5 and 6. They, along with the co-accused, face indictment in a prosecution for offences punishable, inter alia, under Secs.326 and 307 read with Sec.149 of the IPC. The alleged incident took place on 30/10/05. The petitioners have not been arrested at the crime stage or thereafter. Investigation is now complete. Final report has already been filed. Cognizance has been taken by the learned Magistrate. Committal proceedings has been registered. Summons, significantly not warrant, was issued against the petitioners at the first instance. The petitioners did not appear before the learned Magistrate. Consequently, warrants of arrest have been issued against them. Such warrants of arrest are B.A.NO. 938 OF 2008 -: 2 :- chasing the petitioners. The petitioners apprehend imminent arrest. 2. According to the learned counsel for the petitioners, the petitioners are absolutely innocent. They had not shared any common object. They had no information or knowledge about the proceedings till the final report was filed. They were not arrested. No attempt was made to arrest them. They are willing to appear before the learned Magistrate and seek regular bail. But they apprehend that their bail applications may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. They therefore pray that appropriate directions may be issued under Sec.438 and/or Sec.482 of the Cr.P.C. in favour of the petitioners. 3. After the decision in Bharat Chaudhary and another v. State of Bihar (AIR 2003 SC 4662), it is by now trite that powers under Sec.438 of the Cr.P.C. can be invoked in favour of a person who apprehends arrest in execution of a non-bailable warrant issued by a court in a pending proceedings. But even for that, sufficient and satisfactory reasons must be shown to exist. I am not persuaded, in the facts and circumstances of this case, that any such reasons exist. 4. It is for the petitioners to appear before the learned B.A.NO. 938 OF 2008 -: 3 :- Magistrate and explain to the learned Magistrate the circumstances under which they could not earlier appear before the learned Magistrate. I have no reason to assume that the learned Magistrate would not consider the petitioners' applications for regular bail on merits, in accordance with law and expeditiously. No special or specific directions appear to be necessary. Every court must do the same. Sufficient general directions on this aspect have already been issued in the decision reported in Alice George v. Deputy Superintendent of Police (2003 (1) KLT 339). 5. In the result, this bail application is dismissed; but with the observation that if the petitioners surrender before the learned Magistrate and seek 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. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge