IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 Bail Appl..No. 1636 of 2008() ----------------------------- C.C.NO. 772/02 OF JFMC COURT-I, KATTAKKADA PETITIONER/ACCUSED 1 ------------------------------------- MUHAMMED SUDHEER S/O.MUHAMMED HANEEFA, AGED 27 YEARS THERINADA HOUSE, POOZHANAD THERINADA COLONY OTTASEKHARAMANGALAM. BY ADV. SRI.SALIM V.S. SRI.RAFFEEKH.K RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA 2. THE SUB INSPECTOR OF POLICE NEYYARDAM POLICE STATION, NEYYARDAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1636 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2008 O R D E R Application for anticipatory bail. The petitioner faces indictment in a prosecution for offences punishable, inter alia, under Sections 341 and 324 I.P.C. All offences are bailable. The alleged incident took place in 2002. Cognizance was taken in 2002. The petitioner was once enlarged on bail at the crime stage. Investigation is complete. Final report has already been filed. The petitioner has not entered appearance before the learned Magistrate at the post-cognizance stage. In these circumstances, reckoning the petitioner as an absconding accused, coercive processes have been issued against the petitioner. He apprehends imminent arrest. 2. According to the petitioner his absence was not willful. The learned counsel for the petitioner submits that the petitioner is willing to appear before the learned Magistrate. But he apprehends that his application for bail may not be considered B.A.No. 1636 of 2008 2 by the learned Magistrate on merits, in accordance with law and expeditiously. It is in these circumstances prayed that appropriate directions may be issued to release the petitioner on bail on the date of surrender itself. 3. 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. 4. 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 consider the application for bail to be filed by the petitioner when he surrenders before the learned Magistrate, on merits, in accordance with B.A.No. 1636 of 2008 3 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). 5. 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