IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 5662 of 2007()
1. BADHARUDEEN, AGED 43 YEARS,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
For Petitioner :SRI.SIRAJ KAROLY
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :19/09/2007
O R D E R
R.BASANT, J
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B.A.No.5662 of 2007
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Dated this the 19th day of September, 2007
ORDER
Application for anticipatory bail. The petitioner is the 1st accused
in a crime registered under Section 498 A I.P.C. Investigation is
complete. Final report was filed. The case was registered as
C.C.No.165 of 1999. The petitioner was not available for trial. The
co-accused were tried and acquitted. The case against the petitioner
has been split up. The same is pending as C.C.No.52/2005, it is
submitted. Consequent to non appearance of the petitioner, warrants
of arrest have been issued against the petitioner. The petitioner
apprehends imminent arrest.
2. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. His absence earlier was not wilful.
He was very seriously ill. He was suffering from Cancer. He has now
come to India. He is willing to surrender before the learned
Magistrate and seek regular bail. The petitioner apprehends that his
application for regular may not be considered by the learned
Magistrate on merits, in accordance with law and expeditiously. He, in
these circumstances, prays that appropriate directions may be issued
under Section 438 and/or 482 Cr.P.C.
B.A.No.5662 of 2007 2
3. The application is opposed. The learned Public Prosecutor
submits that the petitioner must resort to the ordinary and normal
course of surrendering before the learned Magistrate. He must then
seek regular bail.
4. I find merit in the opposition by the learned Public
Prosecutor. After the decision in Bharat Chaudhary v. State of
Bihar [A.I.R 2003 S.C 4662], it is well settled that powers under
Section 438 Cr.P.C can be invoked even in favour of an 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.
5. 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 such application 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
already been issued in Alice George v. The Deputy Superintendent
of Police [2003(1) KLT 339].
B.A.No.5662 of 2007 3
6. This application is, in these circumstances, dismissed, but
with the specific observation 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 appropriate orders on merits and expeditiously –
on the date of surrender itself. The petitioner can certainly urge the
details of his illness before the learned Magistrate while claiming bail
under Section 437 Cr.P.C.
Hand over a copy of this order to the learned counsel for
the petitioner.
(R.BASANT, JUDGE)
rtr/-