IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 Bail Appl..No. 2217 of 2008() ----------------------------- CRIME 20/08 OF THALASSERY POLICE STATION .................... PETITIONER/ACCUSED NO.1 ---------------------------------------- RAFEEQUE K.P., S/O.USMAN, AGED 40 YEARS, RESIDING AT CHIRAYATH HOUSE, AAYARATH, (P.O), EDAKKAD, KANNUR DISTRICT. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID RESPONDENTS: COMPLAINANT ------------------------ 1. CIRCLE INSPECTOR OF POLICE, THALASSERY POLICE STATION, THALASSERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` B.A. No. 2217 OF 2008 F ```````````````````````````````````````````````````` Dated this the 9th day of April, 2008 O R D E R Application for anticipatory bail. Petitioner is the husband of the de facto complainant. Matrimonial cruelty of the culpable variety is alleged against the petitioner. All the other co-accused have already been granted anticipatory bail. The petitioner apprehends imminent arrest. 2. The learned Public Prosecutor, after taking instructions, submits that the petitioner is not now required to be arrested by the police. Investigation is in progress. Final report has already been filed. Only in execution of processes if any issued by the learned Magistrate need the petitioner now be arrested by the police. The petitioner may be directed to surrender before the learned Magistrate and then seek regular bail, it is prayed. 3. Having considered all the relevant inputs, I find BA.2217/08 : 2 : merit in the opposition by the learned Public Prosecutor. This, I agree with the learned Public Prosecutor, is a fit case where the petitioner must appear before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal and ordinary course. 4. 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. 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 BA.2217/08 : 3 : 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]. 6. 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. 7. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) aks