IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 5225 of 2007()
1. KURIEN VARGHESE, S/O V.T.VARGHESE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.JACOB P.ALEX
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :07/09/2007
O R D E R
R. BASANT, J.
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B.A. No. 5225 OF 2007
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Dated this the 7th day of September, 2007
ORDER
Application for anticipatory bail. The petitioner faces
allegations under the Kerala Abkari Act. The crux of the
allegations against him is that the contraband articles were
recovered from a vehicle of which he is the registered owner.
Investigation is complete. Final report has already been filed.
Committal proceedings has been registered. The petitioner
finds a warrant of arrest issued by the learned Magistrate
chasing him.
2. According to the petitioner, he is absolutely innocent.
He is not, in any way, connected with the vehicle now. The
same has been transferred to another, though such transferee
has not so far taken any steps to get the mutation effected in
the Registration Certificate. It would traversity of justice if
B.A. No. 5225 OF 2007 -: 2 :-
the petitioner were to be arrested and detained in custody even
in execution of a non-bailable warrant issued by a court. In
these circumstances, it is prayed that powers under Sec.438 of
the Cr.P.C. may be invoked in favour of the petitioner – an Ex-
service man.
3. Notice was given to the learned Public Prosecutor. The
learned Public Prosecutor was requested to pointedly explain to
this Court the precise nature of the allegation against the
petitioner. Except that the petitioner continues to be the
registered owner of the vehicle, no other circumstances are
pressed into service to indicate the complicity of the petitioner.
The transferee from the petitioner has been ascertained by the
Investigator.
4. I have considered all the relevant inputs. It is trite,
after the decision in Bharat Chaudhary and another v. State
of Bihar (AIR 2003 SC 4662), that the powers under Sec.438
of the Cr.P.C. can be invoked even in a case where the
apprehended arrest is in execution of a non-bailable warrant
issued by a court after taking cognizance. In the facts and
circumstances to which I have made a brief reference above, I
am satisfied that this is an eminently fit case where such
discretion can and ought to be invoked in favour of the
B.A. No. 5225 OF 2007 -: 3 :-
petitioner.
5. In the result, this petition is allowed. Following
directions are issued under Sec.438 of the Cr.P.C:
(i) The warrant of arrest issued against the petitioner shall
not be executed till 15/9/2007.
(ii) The petitioner shall surrender before the learned
Magistrate having jurisdiction at 11 a.m. on 15/9/07. He shall be
released on bail on his executing a bond for Rs.25,000/- without
any sureties.
(iii) The petitioner shall make himself available for
interrogation before the Investigating Officer as and when
directed by the Investigating Officer in writing to do so.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge