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. 475 of 2008() ---------------------------- CRIME NO. 384/02 OF IRITTY POLICE STATION LPC.70/2007 of J.M.F.C.,MATTANNUR .................... PETITIONER/ACCUSED ----------------------------------- RAJEESH @ KUTTAN, AGED 24 YEARS, S/O.P.K.BHASKARAN, VALAPPILEKANDY HOUSE, MUZHAKUNNU AMSOM, VILAKODE, KANNUR DT. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENTS: COMPLAINANT ------------------------ 1. THE STATION HOUSE OFFICER, IRITTY POLICE STATION, IRITTY, KANNUR. 2. THE STATE OF KERALA, REPRESENTED 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. 475 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2008 O R D E R Application for anticipatory bail. The petitioner is the 10th accused in a crime registered for offences punishable, inter alia, under Sections 436 and 395 I.P.C. Investigation is already complete. Final report has already been filed. Cognizance has been taken. Committal proceedings has been registered. The co-accused have already been committed to the Court of Sessions. The petitioner was not available. Hence committal proceedings against him has been split up and the same has been transferred to the list of long pending cases. The alleged incident took place in 2002. The petitioner was never arrested or released on bail. Reckoning him as absconding, coercive processes have been issued against the petitioner. He finds such coercive processes issued by the learned Magistrate chasing him. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. His absence was not wilful, but was due to reasons beyond his control. He was employed B.A.No. 475 of 2008 2 outside Kerala. The petitioner is willing to appear before the learned Magistrate, but he apprehends that his application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. He therefore prays that directions under Section 438 and/or 482 Cr.P.C. may be issued in favour of the petitioner. 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. 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. B.A.No. 475 of 2008 3 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 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) tm Judge B.A.No. 475 of 2008 4