IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH SEPTEMBER 2007 / 20TH BHADRA 1929 Crl.MC.No. 2843 of 2007() ------------------------- CRIME NO.19/04 OF KUMBLA EXCISE RANGE PETITIONER: ------------ PADMANABHA SHETTY, S/O.SUBBANNA SHETTY PULINKUNNIL HOUSE, MANGALAPADI VILLAGE, KASARAGOD. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS: ------------- STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.2843 of 2007 ---------------------------------------- Dated this the 11th day of September 2007 O R D E R The petitioner faces indictment in a prosecution under Section 55 of the Kerala Abkari Act. Investigation is complete. Final report has already been filed. Cognizance has been taken. Committal proceedings has been registered. The petitioner had not appeared before the learned Magistrate at any prior stage. The petitioner finds a warrant of arrest issued by the learned Magistrate chasing him. According to the petitioner he is absolutely innocent. His absence earlier was not wilful. He is willing to surrender before the learned Magistrate and co-operate with the expeditious disposal of the case. 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 to the learned Magistrate to release the petitioner on bail when he appears and applies for bail. 2. I have considered all the relevant inputs. In Bharat Chaudhary v. State of Bihar [AIR 2003 SC 4662] it is well settled that powers under Section 438 Cr.P.C can be invoked even in favour of the accused who apprehends arrest in execution of a non bailable warrant issued in a pending proceedings. But even for that, sufficient and satisfactory reasons must be shown to exist to justify the invocation of Crl.M.C.No.2843/07 2 the extraordinary equitable discretion under Section 438 Cr.P.C. I do not find any such reasons in these cases. 3. 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 find absolutely no reason to assume that the learned Magistrate would not consider the application for bail to be filed by the petitioner on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific directions appear to be necessary. Sufficient general directions have been issued in Alice George vs. Deputy Superintendent of Police [2003 (1)KLT 339]. 4. In the result, this Criminal Miscellaneous Case is dismissed but with the specific observation that if the petitioner surrenders 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, in accordance with law and expeditiously - on the date of surrender itself. (R.BASANT, JUDGE) jsr Crl.M.C.No.2843/07 3 Crl.M.C.No.2843/07 4 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007