IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 7TH SEPTEMBER 2007 / 16TH BHADRA 1929 Crl.MC.No. 2742 of 2007() ------------------------- CP.361/2001 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... PETITIONER: ACCUSED ------------------- FAZILUDEEN, AGED 31, S/O ABDUL AZEEZ, BISMILLA VEETIL, PULLER MUKKU, KUDAVOOR VILLAGE. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN RESPONDENTS: STATE ------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2742 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of September, 2007 O R D E R The petitioner faces indictment in a prosecution for offences punishable, inter alia, under Section 307 r/w. 149 I.P.C. The case, it is submitted, is pending before the Asst. Sessions Court, Attingal as L.P.No.7 of 1998. The co-accused have already been found not guilty and acquitted. As the petitioner was not available for trial, the case against him was split up and transferred to the list of long pending cases. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. His absence was not wilful, but was due to reasons beyond his control. The petitioner is willing to appear before the learned Asst. Sessions Judge, but he apprehends that his application for bail may not be considered by the learned Judge on merits, in accordance with law and expeditiously. He therefore prays that directions under Section 438 and/or 482 Cr.P.C. may be issued in favour of the petitioner. 3. The learned Prosecutor opposes the application. He submits that the petitioner may be directed to appear before the Investigator or Crl.M.C.No. 2742 of 2007 2 the learned Asst. Sessions Judge and then seek regular bail in the normal course. 4. I find merit in the opposition by the learned Prosecutor. 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. 5. It is certainly for the petitioner to appear before the learned Judge and explain to the learned Judge the circumstances under which he could not earlier appear before the learned Judge. I have no reason to assume that the learned Judge would not consider the application for bail to be filed by the petitioner when he surrenders before the learned Judge, 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). Crl.M.C.No. 2742 of 2007 3 6. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Asst. Sessions Judge and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Judge must proceed to pass orders on merits, in accordance with law and expeditiously - on the date of surrender itself. (R. BASANT) Judge tm