IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 7140 of 2007()
1. SHANAVAS,SAJAD MANZIL,
... Petitioner
Vs
1. A.R.ASOK KUMAR, SUPERINTENDENT OF
... Respondent
For Petitioner :SRI.P.S.ABDUL KAREEM
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :21/11/2007
O R D E R
R. BASANT, J.
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B.A.No. 7140 of 2007
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Dated this the 21st day of November, 2007
O R D E R
The petitioner faces indictment in a prosecution under
Sections 21, 28 and 23 of the N.D.P.S. Act and Section 135 of
the Customs Act. Final report has already been filed.
Cognizance has been taken by the learned Magistrate. He was
not available for trial. The first accused was tried, found not
guilty and acquitted by the Sessions Judge. The petitioner had
earlier come to this Court with a prayer that the prosecution
against him may also be quashed, the first accused having
already been acquitted. But it was brought to the notice of the
court that an appeal against the said acquittal has been filed along
with a petition for condonation of delay. Accordingly the said
Crl.M.C. for quashing the proceedings was dismissed.
2. Consequent to the non-appearance of the petitioner
before the learned Sessions Judge, steps are being taken against
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the petitioner. In these circumstances the petitioner has come to this
Court with a prayer for grant of anticipatory bail.
3. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. The first accused having already
been acquitted, the petitioner may be granted anticipatory bail, it is
prayed. The petitioner is willing to surrender before the learned
Sessions Judge. But he apprehends that if he surrenders, his
application for regular bail may not be considered by the learned
Sessions Judge on merits, in accordance with law and expeditiously. It
is hence that he prays that directions under Section 438 and/or 482
Cr.P.C. may be issued in his favour.
2. The learned Prosecutor opposes the application for
anticipatory bail. There is absolutely no justification in the prayer for
grant of anticipatory bail to the petitioner. He may be directed to resort
to the ordinary and normal procedure of appearing before the Sessions
Judge and then seek regular bail.
3. 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.
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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.
6. It is certainly for the petitioner to appear before the learned
Sessions Judge and explain to the learned Judge the circumstances
under which he could not earlier appear before the learned Judge. I
have no reason to assume that the learned Judge would not consider the
application for bail to be filed by the petitioner when he surrenders
before the learned Judge, 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 by this Court in the decision in Alice George v.
Dy.S.P. of Police (2003 (1) KLT 339).
7. This application is accordingly dismissed. I may however
hasten to observe that if the petitioner appears before the learned
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Sessions Judge and applies for regular bail after giving sufficient
prior notice to the Prosecutor in charge of the case, the learned Judge
must proceed to pass orders on merits, in accordance with law and
expeditiously – on the date of surrender itself.
(R. BASANT)
Judge
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