IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Bail Appl..No. 1646 of 2008() ----------------------------- CC.825/2007 of J.M.F.C. - I, KARUNAGAPPALLY CRIME NO.212/2007 OF KARUNAGAPPALLY POLICE STATION .................... : PETITIONERS/ACCUSED 1 & 2: ------------------------------- 1. PAVANAN, S/O.PASUPALAN, AGED 25 YEARS, P.V.ALAYAM, THEKKEVILA CHERI, THEKKEVILA VILLAGE, KOLLAM. 2. KOMALADAS, S/O.SIVADASAN, AGED 27 YEARS, CHANDRAVILASAM, THEKKEVILA CHERI, THEKKEVILA VILLAGE, KOLLAM. BY ADV. SRI. K.SIJU SRI.PRATHEESH.P RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY S.I. OF POLICE, KARUNAGAPPALLY POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.1646 of 2008 ---------------------------------------- Dated this the 19th day of March 2008 O R D E R Application for anticipatory bail. The petitioner faces allegations in a crime registered alleging commission of the offence punishable inter alia under Section 326 I.P.C. Investigation is complete. Final report has already been filed. Cognizance has been taken by the learned Magistrate. Warrant of arrest has been issued by the learned Magistrate to procure the presence of the petitioner. 2. According to the petitioner, he is absolutely innocent. There is bitter animosity between the de facto complainant and the petitioner. The de facto complainant is none other than his own brother-in-law. His sister had filed a complaint under Section 498A I.P.C against the de facto complainant. In the wound certificate, no fracture was noted. But, in the course of investigation, allegation has been raised under Section 326 I.P.C., it is submitted. 3. The learned Public Prosecutor only submits that there is no need to invoke the powers under Section 438 Cr.P.C now. Final report has already been filed. Cognizance has already been taken. The petitioner need only surrender before the learned B.A.No.1646/08 2 Magistrate and seek regular bail. The learned Magistrate must pass appropriate orders on merits, submits the learned Public Prosecutor. 4. I find merit in the opposition by the learned Public Prosecutor. 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 the extraordinary equitable discretion under Section 438 Cr.P.C. I do not find any such reasons in this case. 5. 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 B.A.No.1646/08 3 Superintendent of Police [2003(1)KLT 339]. 6. In the result, this bail application 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. 7. In the peculiar facts and circumstances of this case, there shall be a direction that the warrant of arrest issued against the petitioner shall not be executed till 29/03/2008. On or before that date, the petitioner shall surrender and seek regular bail. (R.BASANT, JUDGE) jsr B.A.No.1646/08 4 B.A.No.1646/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007