IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 Bail Appl..No. 1561 of 2008() ----------------------------- CP.28/2007 of J.M.F.C.-II, HARIPAD .................... PETITIONER/ACCUSED --------------------------------- PURUSHOTHAMAN @ UTHAMAN, AGED 55 YEARS, THEKKEKULAKKADU VEEDU KANNAMANGALAM VILLAGE WARD NO.XVII, CHETTIKULANGARA PANCHAYAT. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENT/COMPLAINANT: ------------------------------------------ STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, KARILAKULANGARA POLICE STATION THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1561 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of March, 2008 O R D E R Application for anticipatory bail. The petitioner faces indictment in a prosecution under the Kerala Abkari Act. He has not been arrested at the crime stage. Investigation is now complete. Final report has been filed. Committal proceedings has been registered. The petitioner has not been entered appearance. Reckoning him as an absconding accused, 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. 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 Magistrate on merits, in accordance with law and expeditiously. It is in these circumstances prayed that B.A.No. 1561 of 2008 2 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 specific direction appears to be necessary. Sufficient general directions B.A.No. 1561 of 2008 3 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. Needless to say, the petitioner's applications for bail must be considered by the learned Magistrate in the light of the decision in Sukumari v. State of Kerala (2001 (1) KLT 22). (R. BASANT) Judge tm