IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 24TH SEPTEMBER 2007 / ]ND ASWINA 1929 Bail Appl..No. 5748 of 2007() ----------------------------- CRIME NO. 5/06 OF PERUNADU POLICE STATION CP.12/2007 of J.M.F.C.,RANNI .................... PETITIONER/ACCUSED NO.5 ---------------------------------------- SOMAN, S/O.THOMAS, KERALAPPARA HOUSE, PAMBA VALLY MURI, ERUMELI SOUTH VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON RESPONDENTS: STATE ------------------ THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERUNADU POLICE STATION- THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 5748 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September, 2007 O R D E R Application for anticipatory bail. The petitioner is the 5th accused. He faces indictment in a prosecution under the Kerala Abkari Act. 8 x 20 litres of arrack was allegedly found in the possession of the petitioner and others on 16.1.2006. Investigation is complete. Final report has already been filed. Committal proceedings has already been registered. The petitioner has not appeared before the court below. He apprehends arrest in execution of the non-bailable warrant issued by the learned Magistrate. He further apprehends that when he appears and applies for bail, his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. It is hence prayed that appropriate directions under Section 438 Cr.P.C. may be issued in favour of the petitioner. 2. The learned Prosecutor opposes the application. He submits that the petitioner may be directed to appear before the B.A.No. 5748 of 2007 2 Investigator or the learned Magistrate and then seek regular bail in the normal course. 3. 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. 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 have B.A.No. 5748 of 2007 3 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. (R. BASANT) Judge tm