IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 1855 of 2008()
1. RAFEEQUE VADAKUMKARA,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.SANJAY
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :26/03/2008
O R D E R
R. BASANT, J.
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B.A. Nos.1855, 1867, 1871,
1876 & 1880 of 2008
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Dated this the 26th day of March, 2008
ORDER
The common petitioner in these five applications prays
for grant of anticipatory bail. The petitioner faces indictment
for offences punishable under Secs.435 of the IPC
(B.A.No.1876/08), 324 (B.A.Nos.1871 & 1867/08), 326
(B.A.No.1855/08) and 323 of the IPC (B.A.No.1880/08). In all
these cases the petitioner was on bail at the crime stage. But
after cognizance was taken, the petitioner could not appear
before the learned Magistrate. Reckoning him as an
absconding accused, the learned Magistrate has transferred
the cases to the list of Long Pending Cases. Coercive
processes have been issued against the petitioner. The
petitioner finds such processes chasing him now.
2. According to the petitioner, he is absolutely innocent.
B.A. Nos.1855, 1867, 1871,
1876 & 1880 of 2008 -: 2 :-
His absence earlier was not wilful or deliberate. He had
secured employment aboard and was hence not able to appear
before the learned Magistrate. He is now willing to appear
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 Sec.438
of the Cr.P.C. may be issued in his favour.
3. The learned Public Prosecutor opposes the applications.
It is for the petitioner to surrender before the learned Magistrate
and seek regular bail in the normal course, submits the learned
Public Prosecutor.
4. I have considered all the relevant inputs. 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.
5. It is for the petitioner to appear before the learned
B.A. Nos.1855, 1867, 1871,
1876 & 1880 of 2008 -: 3 :-
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
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).
6. In the result, these applications are 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.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy// P.S. to Judge