IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 Bail Appl..No. 1171 of 2008() ----------------------------- CRIME NO. 249/1989 OF PERINTHALMANNA POLICE STATION AGAINST THE ORDER DATED 30/11/1990 IN LP 27/1991 IN CC.83/1990 of J.M.F.C.-I, PERINTHALMANNA .................... PETITIONER/8TH ACCUSED ----------------------------------- ALIYAMMU, S/O. KUNJAYAMMU, THAZHEKODE AMSOM, DESOM, PERINTHALMANNA (VIA), MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENTS: COMPLAINANT ------------------------ THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERINTHALMANNA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1171 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of February, 2008 O R D E R Application for anticipatory bail. The petitioner faces indictment in a crime registered as early as in 1989. He is the 8th accused. Cognizance was taken in 1990. The petitioner was not available for trial. All the other co-accused have by now been found not guilty and acquitted. The case against the petitioner has been split up. Coercive processes have been issued against the petitioner as he was not available in India. He has now returned to India. He finds the coercive processes issued by the learned Magistrate chasing him. Though the offence alleged is bailable, the petitioner apprehends that his application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. 3. The learned Prosecutor opposes the application. He submits that the petitioner may be directed to appear before the Investigator or the learned Magistrate and then seek regular bail in the normal course. B.A.No. 1171 of 2008 2 4. I find merit in the opposition by the learned Prosecutor. 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. 5. 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 law and expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions B.A.No. 1171 of 2008 3 have already been issued by this Court in the decision in Alice George v. Dy.S.P. of Police (2003 (1) KLT 339). 6. 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