IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 Bail Appl..No. 7895 of 2007() ----------------------------- CRIME NO.72/03 OF THE KONGAD POLICE STATION. PETITIONER/ACCUSED NO.4 ---------------------------------------- P.K.FAIZAL, S/O.MOHAMMED, POLLAKUNNAN HOUSE, THIRUVIZHAMKUNNU P.O., KOTTAPADAM I VILLAGE, MANNARKAD, PALAKKAD. BY ADV. SRI.M.C.JOHN RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, KONGAD POLICE STATION, PALAKKAD. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A.NO. 7895 OF 2007 ------------------------------------------------- Dated this the 2nd day of January, 2008 ORDER The petitioner faces indictment in a prosecution for offences punishable, inter alia, under Secs.379 and 411 of the IPC (Crime No.72/03 of Kongad Police Station). Investigation is complete. Cognizance has already been taken. Consequent to the non-availability of the petitioner, the case against him has been transferred to the list of Long Pending Cases, it is submitted. The case is now pending before the learned Judicial Magistrate of the First Class-II, Palakkad. Coercive processes have been issued by the learned Magistrate against the petitioner to procure his presence. The petitioner finds such processes chasing him. 2. According to the petitioner, he is absolutely innocent. His absence earlier was not wilful or deliberate. He is willing B.A.NO. 7895 OF 2007 -: 2 :- to surrender before the learned Magistrate and seek regular bail. But he apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. In these circumstances, it is prayed that directions under Sec.438 and/or Sec.482 of the Cr.P.C. may be issued in favour of the petitioner. 3. This application is opposed by the learned Public Prosecutor. He submits that the petitioner may be directed to surrender before the learned Magistrate and seek regular bail in the ordinary course. 4. I have considered all the relevant inputs. 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. 5. 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. 7895 OF 2007 -: 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). 6. In the result, this bail 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. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge