IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 Bail Appl..No. 1201 of 2008() ----------------------------- AGAINST THE ORDER DATED / / IN LPC 90 2007 IN CC.931/2007 of J.M.F.C.,TALIPARAMBA CR. NO.92/02 OF SREEKANDAPURAM POLICE STATION. .................... PETITIONER/ACCUSED NO.2: ----------------------------------------- SHAMSUDHEEN, S/O. KUNHALANKUTTY, AGED 29 YEARS, PARAYIL HOUSE, KOOTUR VAYAL, SREEKANDAPURAM P.O., NEDIYENGA AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI RESPONDENTS: COMPLAINANT: ------------------------- STATION HOUSE OFFICER, SREEKANDAPURAM POLICE STATION, KANNUR DISTRICT, REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1201 of 2008 ------------------------------------------------- Dated this the 28th day of February, 2008 ORDER Application for anticipatory bail. The petitioner faces indictment in a prosecution under Sec.326 of the IPC. He is the 1st accused in the case. He was not arrested at the crime stage or thereafter. Investigation is complete. Final report has already been filed. Cognizance has been taken. Calendar Case has been registered. As the petitioner was not available for trial, the case against him was split up. The co-accused have already been tried, found not guilty and acquitted, it is submitted. There was a settlement between the parties and composition was reported to the learned Magistrate. According to the petitioner, the case against him also stands compounded. Reckoning the petitioner as an absconding accused, coercive processes were issued against the petitioner. B.A. No. 1201 of 2008 -: 2 :- The petitioner was employed abroad, it is submitted. 2. According to the petitioner, he is absolutely innocent. His absence earlier was not wilful or deliberate. The petitioner, in these circumstances, wants to surrender before the learned Magistrate and seek regular bail. The petitioner 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, in these circumstances, that the petitioner has come to this Court for a direction to the learned Magistrate to release him on bail when he appears before the learned Magistrate. 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 petitioner to appear before the learned Magistrate and explain to the learned Magistrate the circumstances under which he could not earlier appear before B.A. No. 1201 of 2008 -: 3 :- the learned Magistrate. I have no reason to assume that the learned Magistrate would not consider the petitioner's application 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 application is dismissed; but with the observation that if the petitioner surrenders before the learned Magistrate and seeks 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. Needless to say, the application for bail will have to be considered in the light of the decision in Sukumari v. State of Kerala (2001 (1) KLT 22). Sd/- (R. BASANT, JUDGE) Nan/ //true copy/// P.S. to Judge B.A. No. 1201 of 2008 -: 4 :-