IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 16TH OCTOBER 2007 / 24TH ASWINA 1929 Bail Appl..No. 6208 of 2007() ----------------------------- LP.139/2004 of J.M.F.C.-I,KOZHIKODE .................... : PETITIONER/3RD ACCUSED --------------------------------------- C.SOOPY, S/O. MOHAMMED, AGED 50 YEARS, VAYYIL HOUSE, MOOCHIKKAL, THEYYALINGAL POST, TANUR, MALAPPURAM-676 320. BY ADV. SRI.K.M.FIROZ SRI.M.P.SHYJAL RESPONDENTS: STATE ------------------ THE SUB INSPECTOR OF POLICE, KASABA POLICE STATION, KOZHIKODE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16/10/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J = = = = = = = = = = = = = B.A.No. 6208 of 2007 = = = = = = = = = = = = = = Dated this the 16th day of October, 2007 ORDER Application for anticipatory bail. The petitioner faces indictment in a prosecution for the offence punishable under sections 420 IPC. The petitioner is arrayed as the 3rd accused. The petitioner has not entered appearance before the learned Magistrate so far. Cognizance was taken long earlier. Consequent to non-appearance of the petitioner, the case was split up. The same has been transferred to the list of long pending cases and is pending as L.P.No.139/2004 now. The learned Magistrate has issued coercive processes against the petitioner. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. The absence of the petitioner earlier was not wilful and on account of reasons beyond his control. The petitioner is willing to surrender before the learned Magistrate and seek regular bail. But he apprehends that his application for bail may not be considered by the learned B.A.No.6208 of 2007 2 Magistrate on merits, in accordance with law and expeditiously. In these circumstances, appropriate directions may be issued under section 438 Cr.P.C and/or 482 Cr.P.C, prays the learned counsel for the petitioner. 3. The learned Public Prosecutor opposes the application. 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. 4. After the decision in Bharat Chaudhary v. State of Bihar [A.I.R 2003 S.C 4662], it is trite that powers under Section 438 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 to conclude that any such reasons exist. 5. 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 B.A.No.6208 of 2007 3 Magistrate would not consider such application 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 in Alice George v. The Deputy Superintendent of Police [2003(1) KLT 339]. 6. 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, unless there are compelling reasons. (R.BASANT, JUDGE) sj /TRUE COPY/ P.A.TO JUDGE