IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 Bail Appl..No. 1480 of 2008() ----------------------------- C.C.NO.708/05 OF J.F.M.C.-III, THRISSUR PETITIONER/ACCUSED ----------------------------------- PALLAVA RAJAN, AGED 45 YEARS S/O. VENKITA SWAMI,PILLAYAN KOVIL STREET H.NO. 4/28,NEERETHAN, VADIPETTY, MADURAI DIST, TAMIL NADU. BY ADV. SRI.SIRAJ KAROLY RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/03/2008, THE COURT ON 03/03/2008 PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1480 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2008 O R D E R Application for anticipatory bail. The petitioner faces indictment in a prosecution for offences punishable, inter alia, under Section 304A I.P.C. The alleged incident took place in 2005. Investigation is complete. Final report has already been filed. Cognizance has been taken by the learned Magistrate. Calender case has been registered. The petitioner was arrested at the crime stage by the police and was enlarged on bail. After cognizance was taken, the petitioner has not appeared before the learned Magistrate. Consequently reckoning him as absconding, coercive processes have been issued against the petitioner. It is in these circumstances that the petitioner has come to this Court for anticipatory bail. 2. According to the petitioner his absence was not willful. It is his case that he was never served with any notice or summons by the Court. The learned counsel for the petitioner B.A.No. 1480 of 2008 2 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 under Section 438 Cr.P.C. in his favour. 3. The learned Prosecutor opposes the application. He submits that the petitioner may be directed to surrender before the learned Magistrate and seek regular bail in the ordinary course. 4. I have considered all the relevant inputs. 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 petitioners, who apprehend 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. 5. It is certainly for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate the circumstances B.A.No. 1480 of 2008 3 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). 6. 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. 7. Hand over the order (R. BASANT) Judge tm