IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 Bail Appl..No. 583 of 2008() ---------------------------- CP.39/1988 of J.M.F.C.-I, PUNALUR CRIME NO.39/88 OF PATHANAPURAM POLICE STATION .................... : PETITIONER/IST ACCUSED --------------------------------------- GOVINDAN SAHADEVAN, VILAYIL VEEDU, PIDAVOOR MURI & VILLAGE. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENTS: COMPLAINANT ------------------------ THE STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, PATHANAPURAM POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.583 of 2008 ------------------------------------- Dated this the 28th day of January, 2008 ORDER Application for anticipatory bail. Petitioner faces indictment in a crime registered for offences punishable, inter alia, under Section 307 I.P.C. He along with co-accused was committed to the Court of Session. The petitioner, it is submitted, had entered appearance before the Sessions Court also. The case against the accused was numbered as S.C.51 of 1989 before the Assistant Sessions Court, Kottarakkara. The other accused were available for trial. The petitioner was not available for trial. The co-accused were found guilty, convicted and sentenced. The case against the petitioner was split up and renumbered as S.C.159 of 1991. The petitioner has been absconding. He was not available for trial. Coercive processes have been issued by the court against the petitioner. He apprehends imminent arrest in execution of such processes. 2. The learned counsel for the petitioner submits that as against the co-accused even though there was an initial conviction, composition was reported and the co-accused were B.A.No.583 of 2008 2 granted the benefit of such composition. Though the offence under Section 326 I.P.C is not compoundable, the sentence imposed was reduced by this Court. The petitioner is now willing to surrender before the learned Magistrate. 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. It is therefore prayed that directions under Section 438 and/or 482 Cr.P.C may be issued in favour of the petitioner. 3. After the decision in Bharat Chaudhary v. State of Bihar [A.I.R 2003 S.C 4662], it is well settled that powers under Section 438 Cr.P.C can be invoked even in favour of an 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 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 consider such application on merits, in B.A.No.583 of 2008 3 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 in Alice George v. The Deputy Superintendent of Police [2003(1) KLT 339]. 5. This application is, in these circumstances, dismissed, but with the specific observation 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 appropriate orders on merits and expeditiously - on the date of surrender itself. (R.BASANT, JUDGE) rtr/-