IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH APRIL 2008 / 9TH VAISAKHA 1930 Bail Appl..No. 2766 of 2008 ------------------------------------- (IN LPC NO. 5/2008 OF CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD, CRIME NO. 189/2004 OF MANJESHWAR POLICE STATION) .................... PETITIONERS/ACCUSED 2 TO 4 ------------------------------------------- 1. BEEFATHIMA, W/O.LATE MOIDEEN KUNJU, AGED 64 YEARS, KUCHIKKAD HOUSE, MOSCO CROSS ROAD, KUNJATHUR P.O. 2. SMT.JAMILA, D/O.LATE MOIDEEN KUNJU, AGED 39 YEARS, KUCHIKKAD HOUSE, MOSCO CROSS ROAD, KUNJATHUR P.O. 3. SRI.RAFEEQ, LATE MOIDEEN KUNJU, AGED 36 YEARS, KUCHIKKAD HOUSE, MOSCO CROSS ROAD, KUNJATHUR P.O. BY ADV. SRI.SOJAN MICHEAL RESPONDENTS: COMPLAINANT ---------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29/04/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` B.A. No. 2766 OF 2008 ```````````````````````````````````````````````````` Dated this the 29th day of April, 2008 O R D E R Application for anticipatory bail. Petitioners face indictment in a prosecution under section 498A IPC. The crime was registered in 2004. Investigation is complete. Final report has already been filed. The petitioners were not available for trial. Reckoning them as absconding accused, the case against them was transferred to the list of long pending cases. Coercive processes are initiated against the petitioners. The petitioners apprehend imminent arrest. 2. According to the petitioners, they are absolutely innocent. Their absence earlier was not wilful or deliberate. The petitioners are willing to surrender before the learned Magistrate and seek regular bail. But they apprehend that their application for bail may not be considered by the learned Magistrate on merits, in accordance with law and BA.2766/08 : 2 : expeditiously. They, therefore, pray that directions under Section 438 or 482 Cr.P.C. may be issued to the learned Magistrate to release the petitioners on bail when they appear and apply for bail. 3. After the decision in Bharat Chaudhary and another Vs. State of Bihar [AIR 2003 SC 4662], it is now trite that powers under section 438 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 Magistrate and explain to the learned Magistrate, the circumstances under which they could not earlier appear before the learned Magistrate. I find absolutely no reason to assume that the learned Magistrate would not consider the BA.2766/08 : 3 : application for bail to be filed by the petitioners on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific directions appear to be necessary. Sufficient general directions have been issued in Alice George Vs. Deputy Superintendent of Police [2003 (1) KLT 339]. 5. In the result, this petition is dismissed but with the specific observation that if the petitioners surrender before the learned Magistrate and apply 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, in accordance with law and expeditiously - on the date of surrender itself. (R.BASANT, JUDGE) aks