IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 5364 of 2007()
1. HARSHAD, S/O. AHAMMED KUTTY,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :06/09/2007
O R D E R
R.BASANT, J.
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B.A.No.5364 of 2007
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Dated this the 6th day of September 2007
O R D E R
Application for anticipatory bail. The petitioner faces
indictment in a prosecution iner alia under Sections 498A and
306 I.P.C. He is the husband of the deceased. Investigation was
complete. Final report was filed. Cognizance was taken. The
case was committed to the court of Session. The petitioner had
entered appearance and was enlarged on bail. The trial had
commenced. The matter had reached the stage of 313
examination. At that stage, the petitioner started not appearing
before the learned Sessions Judge. Consequently, the case now
stands transferred to the list of long pending cases. The learned
Sessions Judge has issued coercive processes against the
petitioner and the petitioner finds a warrant of arrest issued by
the learned Sessions Judge chasing him.
2. According to the petitioner, he is absolutely innocent.
His absence was not wilful or deliberate. He was forced and
compelled to leave in connection with his employment. The
petitioner is willing to appear before the learned Sessions Judge
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and seek regular bail. The petitioner apprehends that his
application for regular bail may not be considered by the learned
Sessions Judge on merits, in accordance with law and
expeditiously. He, therefore, prays that appropriate directions
may be issued under Section 438 and/or 482 Cr.P.C.
3. The application is opposed by the learned Public
Prosecutor. The learned Public Prosecutor submits that the
petitioner may be directed to appear before the court below and
seek regular bail.
4. I have considered all the relevant inputs. After the
decision in Bharat Chaudhary v. State of Bihar [AIR 2003 SC
4662] it is well settled that powers under Section 438 Cr.P.C can
be invoked even in favour of the accused who apprehends arrest
in execution of a non bailable warrant issued in a pending
proceedings. But even for that, sufficient and satisfactory
reasons must be shown to exist to justify the invocation of the
extraordinary equitable discretion under Section 438 Cr.P.C. I
do not find any such reasons in this case.
5. It is for the petitioner to appear before the learned
Magistrate and explain to the learned Magistrate, the
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circumstances under which he could not earlier appear before
the learned Magistrate. I find absolutely no reason to assume
that the learned Magistrate would not consider the application
for bail to be filed by the petitioner on merits, in accordance with
law and expeditiously. Every court must do the same. No special
or specific directions appear to be necessary. Sufficient general
directions have been issued in Alice George vs.Deputy
Superintendent of Police [2003(1)KLT 339].
6. In the result, this bail application is dismissed but
with the specific observation that if the petitioner surrenders
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, in accordance with law and expeditiously – on the date
of surrender itself.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007