IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 Bail Appl..No. 1864 of 2008() ----------------------------- CR.NO. 156/06 OF TALIPARAMBA POLICE STATION CP.164/2007 of J.M.F.C.,TALIPARAMBA .................... PETITIONER/A3 --------------------------- MUHAMMED.M. S/O. ASSAINAR, AGED 23 YEARS MADALANTAKATH OLIYAN HOUSE, CHAPPARAPPADAVA P.O. KOOVERI AMSOM, KANNUR DISTRICT. BY ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI RESPONDENTS: ------------- STATION HOUSE OFFICER,TALIPARAMBA POLICE STATION,KANNRU DISTRICT (CRIME NO.156/06 OF TALIPARAMBA POLICE STATION KANNUR DISTRICT, 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 26/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1864 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2008 O R D E R Application for anticipatory bail. The petitioner is the third accused. He faces indictment in a prosecution for offences punishable, inter alia, under Section 436 r/w. 149 I.P.C. In the crime he was accused No.22. Investigation is complete. Final report has been filed. Cognizance has been taken. Committal proceedings has been registered. The petitioner has not entered appearance before the learned Magistrate. In these circumstances, the case against him has been split up and coercive processes have been issued against the petitioner. He apprehends imminent arrest in execution of such coercive processes. 2. The learned counsel for the petitioner submits that the petitioner is innocent. His absence was not willful. The learned counsel for the petitioner submits that the petitioner is willing to appear before the learned Magistrate. He was employed abroad and it was in these circumstances that he did not receive notice B.A.No. 1864 of 2008 2 after cognizance was taken and could not appear before the learned Magistrate. It is in these circumstances prayed that anticipatory bail may be granted to the petitioner. 3. The learned Prosecutor opposes the application. He only submits that the petitioner may be directed to surrender before the learned Magistrate and seek regular bail. 4. 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. 5. 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 B.A.No. 1864 of 2008 3 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. Every court must do the same. 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). 6. This application is accordingly dismissed. I may however hasten to observe 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 orders on merits, in accordance with law and expeditiously - on the date of surrender itself. (R. BASANT) Judge tm