IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 14TH NOVEMBER 2007 / 23RD KARTHIKA 1929 Bail Appl..No. 6958 of 2007() ----------------------------- CP.117/2007 of J.M.F.C.,KASARAGOD CR.NO.36/2006 OF KUMBLA EXCISE RANGE .................... : PETITIONER/ACCUSED ----------------------------------- ANIL KUMAR, S/O.CHANDHU, KAVITHA NILAYA, DURGI PALLA, MANJASHWER, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REP. BY SHO KUMBLA EXCISE RANGE, REP. BY PUBLIC PROSECUTOR, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/11/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.6958 of 2007 ---------------------------------------- Dated this the 14th day of November 2007 O R D E R Application for anticipatory bail. The petitioner faces allegations under the Kerala Abkari Act. He was allegedly found to carry in his possession 100 packets of Karnataka arrack each containing 100ml on 19/10/2006. On seeing the excise party, he allegedly abandoned the article and took to his heels. He could not be apprehended. In the contemporaneous seizure mahazer as well as in the occurrence report, the petitioner's name and complicity are indicated. Investigation is complete. Final report has already been filed. The petitioner has not been apprehended so far. Consequent to the non-appearance of the petitioner, warrant of arrest has been issued by the learned Magistrate against the petitioner. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. His absence earlier was not wilful or deliberate. The petitioner is willing to surrender before the learned Magistrate and seek regular bail. But he B.A.No.6958/07 2 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 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. 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. 4. 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 B.A.No.6958/07 3 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 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. (R.BASANT, JUDGE) jsr B.A.No.6958/07 4 B.A.No.6958/07 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007