IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 Bail Appl..No. 295 of 2008() ---------------------------- CP.172/2007 of J.M.F.C.,MATTANNUR CRIME NO.32/05 OF MATTANNUR POLICE STATION .................... PETITIONER : 2ND ACCUSED: ----------------------------- C.H.ISMAIL, S/O.IBRAHIM HAJEE, AGED 52 YEARS, SALMA NIVAS, VEMBADY, P.O.KOLARI. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY CBCID, S/G III, KOZHIKODE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.295 of 2008 ------------------------------------- Dated this the 18th day of January, 2008 ORDER Application for anticipatory bail. Petitioner is the 2nd accused. He faces indictment in a prosecution for offences punishable under Section 489 B & C r/w 34 I.P.C. Investigation is complete. Final report has already been filed. The petitioner was never arrested in the course of investigation. The learned Magistrate has taken cognizance. Committal proceedings has already been registered. The petitioner has not entered appearance so far. Reckoning the petitioner as an absconding accused, a warrant of arrest has been issued against the petitioner. The petitioner finds such warrant chasing him now. The petitioner, in these circumstances, has come before this Court for issue of appropriate directions under Section 438 and/482 Cr.P.C in his favour. 2. 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 B.A.No.295 of 2008 2 invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. I do not find any such reasons in this case. 3. 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]. 4. 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/- B.A.No.295 of 2008 3