IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 5021 of 2006()
1. SHAJI, AGED 43 YEARS,
... Petitioner
2. SUKU, AGED 32 YEARS, S/O.RAGHAVA,
3. ROY MARKOSE, AGED 33 YEARS,
4. REJI, AGED 34 YEARS,
Vs
1. STATE OF KERALA, REP. BY DIRECTOR
... Respondent
For Petitioner :SRI.BIJU M.JOHN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :08/08/2006
O R D E R
R. BASANT, J.
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B.A.No. 5021 of 2006
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Dated this the 8th day of August, 2006
O R D E R
Application for anticipatory bail. Petitioners face indictment in
a prosecution, inter alia, under Section 308 and 326 r/w. 120B I.P.C.
Cognizance has been taken by the court of Sessions. Consequent to
non-appearance of the petitioners, they find non-bailable warrants
issued by the learned Sessions Judge chasing them. They have rushed
to this court with a prayer that directions under Section 438 Cr.P.C.
may be invoked in their favour.
2. The learned Public Prosecutor opposes the application. The
apprehended arrest is in execution of a non-bailable warrant issued
by a Court. There are no circumstances justifying invocation of the
discretion under Section 438 Cr.P.C. Petitioners may be directed
to appear before the learned Magistrate and seek bail in the regular
and ordinary course, submits the Prosecutor.
3. I find merit in the submissions of the learned Prosecutor. Of
B.A.No. 5021 of 2006 2
course, powers under Section 438 Cr.P.C. can be invoked in an appropriate
case even when the apprehended arrest is in execution of a non-bailable
warrant issued by a court after taking cognizance. But for that sufficient
and compelling reasons must be shown to exist. I do not find any such
circumstances in this case. It is for the petitioners to appear before the
learned Magistrate and explain to the learned Magistrate the circumstances
under which they 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 on merits and expeditiously.
4. This application is hence dismissed, but with the observation that
if the petitioners surrender before the learned Magistrate and apply 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, unless there are
compelling reasons.
(R. BASANT)
B.A.No. 5021 of 2006 3
Judge
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