IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 Bail Appl..No. 440 of 2008() ---------------------------- CP.213/2007 of J.M.F.C., ADOOR CRIME NO.632/07 OF THE ADOOR POLICE STATION .................... PETITIONER: -------------------- OMANAKUTTAN, AGED 35 YEARS, S/O. BHASKARAN, VATTAVILA THEKKETHIL (KOCHU VILAYIL), THUVAYUR NORTH, ERATHU VILLAGE, ADOOR TALUK. BY ADV. SRI. K.SHAJ SRI.SAJJU.S SRI.B.BALRAJ RESPONDENT: ----------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P. P. SRI.S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 440 OF 2008 ------------------------------------------------- Dated this the 21st day of January, 2008 ORDER Application for anticipatory bail. The petitioner faces indictment for offences punishable, inter alia, under Secs.326 and 307 read with Sec.149 of the IPC. Investigation is complete. Final report has already been filed. Cognizance has been taken. Committal proceedings has been registered. Summons, at the first instance, has been issued under Sec.204 of the Cr.P.C. The petitioner has already received the summons. He has not entered appearance so far. The petitioner is willing 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. He therefore prays that appropriate directions B.A. No. 440 OF 2008 -: 2 :- may be issued under Sec.438 and/or Sec.482 of the Cr.P.C. to save him from the trauma of arrest and incarceration. 2. I note that the learned Magistrate has chosen to issue summons at the first instance. I must assume that the learned Magistrate has, after due application of mind, chosen to issue only a summons and not a warrant of arrest under Sec.204 of the Cr.P.C. 3. 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. 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 the petitioner's application for regular bail on merits, in accordance with law and expeditiously. No special or specific directions appear to B.A. No. 440 OF 2008 -: 3 :- 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). 5. In the result, this 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 in accordance with the principles in Sukumari v. State of Kerala (2001 (1) KLT 22). Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge