IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 1483 of 2008()
1. SAHEER, S/O.ABOOBACKER,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
For Petitioner :SMT.LATHA PRABHAKARAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :03/03/2008
O R D E R
R. BASANT, J.
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B.A.No. 1483 of 2008
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Dated this the 3rd day of March, 2008
O R D E R
The petitioner faces indictment in a prosecution for
offences punishable, inter alia, under Sections 326 and 307 I.P.C.
At the crime stage the petitioner was not arrested at all.
According to the petitioner he never knew that there was any
intention to array him as an accused in this crime. Now the
petitioner has received summons from the Magistrate directing
him to appear as an accused in C.P. 2 of 2008 on 7.3.2008.
2. According to the petitioner he is absolutely innocent.
He is not in any way connected with the crime. He is willing to
appear before the learned Magistrate in response to the summons
issued 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.
It is in these circumstances prayed that appropriate directions
may be issued under Section 438 Cr.P.C. in his favour.
B.A.No. 1483 of 2008
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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.
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.
4. It is certainly 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 application for bail to be filed by the petitioner when he
surrenders before the learned Magistrate, on merits, in accordance with
law and expeditiously. 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).
B.A.No. 1483 of 2008
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7. This application is accordingly dismissed with the specific
observation that the petitioner’s application for regular bail must be
considered by the learned Magistrate and pass orders on merits, in
accordance with law and expeditiously, on the date of surrender itself.
I do note that the learned Magistrate has already exercised his
discretion under Section 204 Cr.P.C. to issue only summons and not a
warrant. I must also assume that the learned Magistrate must have
applied his mind and take an informed decision on that aspect. Having
issued a summons to the petitioner to appear, I think it unlikely that
an accused person would be detained in custody thereafter unless
compelling reasons are there. The decision in Sukumari v. State of
Kerala (2001 (1) KLT 22) has considered this aspect of the matter. I
need only mention that the learned Magistrate must consider the matter
in the light of the decision in Sukumari also.
(R. BASANT)
Judge
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