IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R. BASANT TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 Bail Appl..No. 1503 of 2008() ----------------------------- CRIME NO. 360/01 OF CHANGARAMKULAM POLICE STAITON CC.309/2005 of J.M.C. - I, PONNANI .................... PETITIONER : 2ND ACCUSED: ----------------------------- RAFEEK, S/O.IBRAHIM, KIZHAKKETHIL HOUSE, NANNAM MUKKU, KALLOORMA, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENTS: COMPLAINANT: ------------------------- 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 11/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1503 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2008 O R D E R Application for anticipatory bail. The petitioner faces indictment in a prosecution, inter alia, under Section 326 I.P.C. The petitioner was not arrested at the crime stage or thereafter. Cognizance has been taken. The petitioner has not appeared before the learned Magistrate. The case against him has been split up. Coercive processes have been issued against the petitioner by the learned Magistrate. He finds such process chasing him. 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 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. B.A.No. 1503 of 2008 2 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 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). B.A.No. 1503 of 2008 3 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