IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 Bail Appl..No. 1376 of 2008() ----------------------------- CRIME NO. 5/02 OF CHALAKUDY POLICE STATION CP.34/2003 of J.M.F.C.,CHALAKUDY ................. PETITIONER/ACCUSED NO.2 ---------------------------------------- VIJESH, S/O. BHARATHAN, AGED 30, OMANGALATH HOUSE, WEST CHALAKUDY DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.M.H.HANIL KUMAR RESPONDENTS: COMPLAINANT/STATE ------------------------------ 1. SUB INSPECTOR OF POLICE, CHALAKUDY POLICE STATION, THRISSUR DIST., REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTORSRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1376 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of March, 2008 O R D E R Application for anticipatory bail. The petitioner faces allegations as the second accused in a crime registered under the Kerala Abkari Act. He was arrested and enlarged on bail at the crime stage. Investigation is complete. Final report has already been filed. Cognizance has been taken. Committal proceedings has been registered. The petitioner was not available before the committal court. Hence 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. He had gone abroad. Subsequent to the filing of the final report he is not served with any notice or process. 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 B.A.No. 1376 of 2008 2 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. 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 B.A.No. 1376 of 2008 3 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). 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