IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 Bail Appl..No. 3822 of 2008() ----------------------------- LP.29/2005 of ADDL.SESSIONS COURT (FAST TRACK)III, MANJERI ARISING OUT OF CRIME NO.342/1994 OF KONDOTTY POLICE STATION .................... PETITIONER : ACCUSED 3 --------------------------- ANWAR, S/O. ALI,THACHARAMBAN HOUSE, ARIMBRA, MORAYOOR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT: STATE ------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KONDOTTY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------- B.A.No.3822 of 2008 ------------------------------------------- Dated this the 17th day of June, 2008 ORDER The petitioner is an absconding accused. He is the third accused in the case. He was originally granted bail by the lower court. But he absconded and hence, non bailable warrant was issued against him. Proceedings under Sections 82 and 83 of the Code of Criminal Procedure (the code, for short) were initiated against him. Thereafter, the case was transferred to the register of long pending cases. The petitioner now apprehend arrest in view of the warrant issued. 2. Learned counsel for the petitioner submitted that the petitioner had gone abroad, in connection with his employment and hence, he could not appear before the court below. The absence is not willful nor deliberate. But, petitioner apprehends that he will be remanded to custody, in the event of his surrender before the court. Hence, he requests that anticipatory bail may be granted to him. 3. Section 438 of the Code reads as follows: Section 438 (1) of the Code lays down that where any person has reason BA 3822/08 2 to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or Sessions Court under the Section that in the event of his arrest he shall be released on bail. The provision can be invoked only in cases where the apprehension of arrest is “on the accusation of having committed a non-bailable offence”. The reason for the arrest must be the commission of a non-bailable offence by the petitioner. 4. But, in this case, the petitioner apprehends arrest not on account of his commission of non-bailable offence. Such apprehension is over. He was granted bail also. But, the petitioner faces threat of arrest only because he has jumped the bail granted by the court and he has violated the conditions imposed while granting bail. On going through Section 438, it is clear that the provision can be invoked only if the petitioner apprehends arrest on the accusation that he has committed non bailable offence. The present apprehension of arrest is only because a non-bailable warrant is issued by a court since he absented himself during trial and not because he is an accused in a non-bailable offence. So, strictly speaking, it cannot be said BA 3822/08 3 that he is apprehending arrest on accusation of having committed a non-bailable offence. He is required for arrest because of his absence in the court, and for execution of a non- bailable warrant issued by a competent court. So, the requirement under Section 438 Crl.P.C. will not be satisfied and the said provision cannot be invoked in situation like this. 5. It is only because, the petitioner was absent and could not be procured for trial that a warrant was issued. Whatever be the consequences, the petitioner is bound to suffer but Section 438 Crl.P.C. is not the remedy. If he has genuine reasons for his absence, the trial court itself will consider the same and grant appropriate relief. But, in my view, this court cannot invoke Section 438 Crl.P.C. to grant anticipatory bail. 6. Learned counsel for the petitioner submitted that there is no bar in granting anticipatory bail even after cognizance is taken and charge sheet is submitted. He has relied upon the decision reported in N.Santosh Hegde and B.P.Singh (AIR 2003 Supreme Court 4662). The relevant portion of which is extracted herein: BA 3822/08 4 “The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the Investigating agency has filed a charge- sheet, would not by itself, in our opinion, prevent the concerned Courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned Courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge- sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the Courts i.e., the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non- bailable offences under Section 438 of Crl.P.C. even when cognizance is taken or charge-sheet is filed provided the facts of the case require the Court to do so.” 7. On going through the said decision, it is made clear by the Supreme Court was only laying down that there is no bar in BA 3822/08 5 granting anticipatory bail even after taking cognizance and also after filing of charge sheet in appropriate case. The above decision is not quite relevant in the present context. The question here is whether the petitioner is sought to be arrested on the ground that he is accused of a non-bailable offence or not. Since the arrest is not on that ground but it is due to the warrant lawfully issued by a competent court, it is not proper for this court to intervene under Section 438 Crl.P.C. Section 438 Crl.P.C. is not intended to be invoked for interfering with lawful orders issued by a competent court, especially when there is nothing to show that the order for arrest was issued baselessly. 8. Learned counsel for the petitioner submitted that the petitioner is prepared to surrender before the court below and a direction may be given to the lower court to dispose of the bail application on the same day of filing of the petition. 9. On hearing both sides, I am satisfied that the following direction can be given: 10. In the event of the surrender of the petitioner before the trial court and in case an application for bail is filed with prior notice to the prosecutor the court below shall not protract BA 3822/08 6 disposal of application but it shall be disposed of as expeditiously as possible. The petition is disposed of accordingly. K.HEMA, JUDGE csl