IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 Bail Appl..No. 838 of 2008() ---------------------------- CP.172/2007 of J.M.F.C.-I,HOSDRUG CRIME NO.175/2005 OF CHANDERA POLICE STATION .................... PETITIONERS/ACCUSED NOS. 1 AND 3: -------------------------------------- 1. MUHAMMEDKUNHI, S/O.LATE ABDULLA, THEKKEKIOLOTH, OZHINHAVALAPPU, KANHANGAD SOUTH. 2. T.K.KHALID, S/O.LATE ABDULLA, THEKKEKIOLOTH, OZHINHAVALAPPU, KANHANGAD SOUTH. BY ADV. SMT.T.SUDHAMANI RESPONDENTS: COMPLAINANT: ------------------------- THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.838 of 2008 ---------------------------------------- Dated this the 13th day of February 2008 O R D E R Application for anticipatory bail. The petitioners are accused 1 and 3. They face allegations for offence punishable inter alia under Sections 366 and 376 read with 511 I.P.C. Investigation is complete. Final report has already been filed. The petitioners were not arrested at the crime stage or thereafter. Final report has been filed. Cognizance has been taken by the learned Magistrate. Committal proceedings has been registered. Reckoning the petitioners as absconding accused, coercive processes have been issued against them by the learned Magistrate. The petitioners find such processes chasing them. 2. The learned counsel for the petitioners submits that the petitioners 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 B.A.No.838/08 2 with law and expeditiously. They, therefore, pray that directions under Section 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. In Bharat Chaudhary v. State of Bihar [AIR 2003 SC 4662] it is well settled that powers under Section 438 Cr.P.C can be invoked even in favour of the 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 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 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 B.A.No.838/08 3 general directions have been issued in Alice George vs. Deputy Superintendent of Police [2003(1)KLT 339]. 5. In the result, this bail application 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) jsr B.A.No.838/08 4 B.A.No.838/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007