IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Bail Appl..No. 488 of 2008(K) ----------------------------- LPC.36/1999 of J.M.F.C.,THALASSERY CRIME NO.Cr.2/CR/04 OF CBCID, KANNUR .................... : PETITIONER-1ST ACCUSED: ---------------------------------------- KUNNATH ANEES @ IBRAHIMKUTTY, AGED 37, S/O. SAYED MOHAMMED, SREENARAYANAPURAM, AMANDOOR DESOM, SANTHIPURAM, MATHILOOR. BY ADV. SRI.K.K.JAYARAJ NAMBIAR RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.488 of 2008 ------------------------------------- Dated this the 29th day of January, 2008 ORDER Application for anticipatory bail. Petitioner faces indictment in a prosecution under Section 420 I.P.C. Investigation was subsequently completed and the final report was filed. The petitioner was not available as he had gone to his place of employment outside Kerala. The petitioner could not hence appear before the learned Magistrate. The learned Magistrate, reckoning the petitioner as an absconding accused, has issued coercive processes against the petitioner. The petitioner apprehends imminent arrest. 2. According to the learned counsel for the petitioner, the petitioner-the 1st accused is absolutely innocent. His absence was not wilful or deliberate. He had not received any notice from the court. 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 under Section 438 and/or 482 Cr.P.C may be issued in favour of the petitioner. B.A.No.488 of 2008 2 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.488 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. (R.BASANT, JUDGE) rtr/-