IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4863 of 2007()
1. KUNHIMOIDEEN.V, S/O MUHAMMED ALI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.P.R.SREEJITH
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :13/08/2007
O R D E R
R.BASANT, J
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B.A.No.4863 of 2007
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Dated this the 13th day of August, 2007
ORDER
Petitioner claims to be an accused in Crime No.81/2005 of
Thenjipalam Police Station, registered,inter alia, under Sec.326 IPC.
Investigation is complete. Final report has already been filed.
Consequent to nonavailability of the petitioner, warrant of arrest
and steps under Sec.82 Cr.P.C were initiated against the petitioner.
According to the petitioner, he is absolutely innocent. His absence
earlier was not wilful or deliberate. The petitioner is willing to
surrender before the learned Magistrate and co-operate with the
learned Magistrate for expeditious disposal of the case. 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 further prays that appropriate directions under
Section 438 Cr.P.C may be issued in favour of the petitioner.
2. The learned Public Prosecutor opposes the application.
The learned Public Prosecutor submits that it is for the petitioner to
appear before the learned Magistrate and seek regular bail in the
ordinary course. The learned Public Prosecutor points out that there
B.A.No.4863 of 2007 2
is difference between the name of the 3rd accused as per the
records of the Police and the name of the petitioner described in
this petition. Be that as it may, I am satisfied that no directions
under Sec.438 Cr.P.C can or ought to be issued.
3. After the decision in Bharat Chaudhary v. State of Bihar
[A.I.R 2003 S.C 4662], it is trite that powers under Section 438
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 to conclude that any such reasons exist.
4. It is 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 such application 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 in Alice George v. The
Deputy Superintendent of Police [2003(1) KLT 339].
B.A.No.4863 of 2007 3
5. This application is, in these circumstances, dismissed,
but with the specific observation that if the petitioner appears
before the learned Magistrate and applies 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, JUDGE)
sj
/TRUE COPY/
P.A.TO JUDGE