IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 Bail Appl..No. 2302 of 2008() ----------------------------- LP.25/2005 of J.M.F.C.-II,KOTTARAKKARA CRIME NO.166/2002 OF POOYAPPALLY POLICE STATION .................... : PETITIONER/1ST ACCUSED --------------------------------------- NOUSHAD, S/O.ABDUL SATHAR, PAPPALODE MELEVILAVEEDU, VELINALLOOR, MEEYANA, KOLLAM. BY ADV. SRI.SAJU.S.A RESPONDENTS: STATE ------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.2302 of 2008 ---------------------------------------- Dated this the 10th day of April 2008 O R D E R Application for anticipatory bail. The petitioners face indictment in a prosecution under Section 498A I.P.C. Cognizance was taken by the learned Magistrate. The petitioner was not available for trial. The co-accused have already been tried, found not guilty and acquitted consequent to settlement of the disputes between the parties. As the petitioner was not available, the case against him has been split up and now stands included in the list of long pending cases before the learned Magistrate. Coercive processes have been issued against the petitioner. The petitioner apprehends arrest in execution of such processes. 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 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 438 or/and 482 Cr.P.C. may be issued to the learned B.A.No.2302/08 2 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 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]. B.A.No.2302/08 3 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.2302/08 4 B.A.No.2302/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007