IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 440 of 2008()
1. OMANAKUTTAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI. K.SHAJ
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :21/01/2008
O R D E R
R. BASANT, J.
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B.A. No. 440 OF 2008
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Dated this the 21st day of January, 2008
ORDER
Application for anticipatory bail. The petitioner faces
indictment for offences punishable, inter alia, under Secs.326
and 307 read with Sec.149 of the IPC. Investigation is
complete. Final report has already been filed. Cognizance
has been taken. Committal proceedings has been registered.
Summons, at the first instance, has been issued under Sec.204
of the Cr.P.C. The petitioner has already received the
summons. He has not entered appearance so far. The
petitioner is willing to surrender before the learned Magistrate
and seek regular bail. But he apprehends that his application
for regular bail may not be considered by the learned
Magistrate on merits, in accordance with law and
expeditiously. He therefore prays that appropriate directions
B.A. No. 440 OF 2008 -: 2 :-
may be issued under Sec.438 and/or Sec.482 of the Cr.P.C. to
save him from the trauma of arrest and incarceration.
2. I note that the learned Magistrate has chosen to issue
summons at the first instance. I must assume that the learned
Magistrate has, after due application of mind, chosen to issue
only a summons and not a warrant of arrest under Sec.204 of the
Cr.P.C.
3. After the decision in Bharat Chaudhary and another
v. State of Bihar (AIR 2003 SC 4662), it is by now trite that
powers under Sec.438 of the Cr.P.C. can be invoked in favour of
a person who apprehends arrest in execution of a non-bailable
warrant issued by a court in a pending proceedings. But even
for that, sufficient and satisfactory reasons must be shown to
exist. I am not persuaded, in the facts and circumstances of this
case, that any such reasons exist.
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 have no reason to assume that the
learned Magistrate would not consider the petitioner’s
application for regular bail on merits, in accordance with law
and expeditiously. No special or specific directions appear to
B.A. No. 440 OF 2008 -: 3 :-
be necessary. Every court must do the same. Sufficient general
directions on this aspect have already been issued in the decision
reported in Alice George v. Deputy Superintendent of Police
(2003 (1) KLT 339).
5. In the result, this application is dismissed; but with the
observation that if the petitioner surrenders before the learned
Magistrate and seeks 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 and
expeditiously – on the date of surrender itself in accordance with
the principles in Sukumari v. State of Kerala (2001 (1) KLT
22).
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge