IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 Bail Appl..No. 1340 of 2008() ----------------------------- CRIME NO.323/1991 OF NADAPURAM POLICE STATION SC.644/2004 of ADDL.DISTRICT COURT (ADHOC)-II, KOZHIKODE .................... PETITIONER/4TH ACCUSED --------------------------------------- RAGHOOTTY, AGED 46 YEARS, S/O.CHATHU, PADINJARAYIL, BHOOMIVATHUKKAL P.O., VALAYAM, PIN-673 517. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENTS: COMPLAINANT ------------------------ THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, NADAPURAM POLICE STATION, KOZHIKODE DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04/03/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` B.A. No. 1340 OF 2008 B ```````````````````````````````````````````````````` Dated this the 4th day of March, 2008 O R D E R Application for anticipatory bail. Petitioner is the 3rd accused in crime No.323/1991 of Nadapuram police station registered alleging commission of offences punishable, inter alia, under sections 3 and 5 of the Explosive Substances Act. Investigation is complete. Final report has already been filed. The co-accused were committed to the court of sessions. They have already been found not guilty and acquitted, submits the learned counsel for the petitioner. But as the petitioner was not available for trial, the case against him has been split up and the proceedings are pending before the Judicial First Class Magistrate Court, Nadapuram, it is submitted. 2. According to the petitioner, he is absolutely innocent. His failure/omission to appear earlier was not BA.1340/08 : 2 : intentional or deliberate. 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 Magistrate on merits, in accordance with law and expeditiously. He, therefore, prays that directions under Section 438 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. 3. After the decision in Bharat Chaudhary and another Vs. State of Bihar [AIR 2003 SC 4662], it is now 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, that any such reasons exist. 4. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate, the BA.1340/08 : 3 : 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]. 5. In the result, this petition 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) aks