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Mohammed Bhasha vs State Of Kerala on 25 September, 2007

Kerala High Court
Mohammed Bhasha vs State Of Kerala on 25 September, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl No. 5786 of 2007()


1. MOHAMMED BHASHA, S/O.BHAVA,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, THROUGH THE
                       ...       Respondent

                For Petitioner  :SRI.SUNNY MATHEW

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :25/09/2007

 O R D E R
                           R. BASANT, J.
             -------------------------------------------------
                      B.A. No. 5786 OF 2007
             -------------------------------------------------
        Dated this the 25th day of September, 2007

                                ORDER

Application for anticipatory bail. The petitioner is the 1st

accused, he being a husband of the de facto complainant. He

faces allegations for offences punishable, inter alia, under

Sec.498-A of the IPC. Investigation is now complete. Final

report has been filed. The petitioner was earlier enlarged on

bail. The petitioner was not available for trial. The case

against him was split up. The co-accused have already faced

trial and have been acquitted, it is submitted. Coercive

processes have been issued against the petitioner by the

learned Magistrate. The petitioner finds a warrant of arrest

issued by the learned Magistrate chasing him. The case was

initiated as early as in 2003.

2. According to the petitioner, he is absolutely innocent.

B.A. No. 5786 OF 2007 -: 2 :-

His failure to appear before the learned Magistrate was not

wilful or deliberate. He was employed abroad and that is why he

could not be present before the learned Magistrate. The

petitioner, in these circumstances, wants to surrender before the

learned Magistrate and seek regular bail. The petitioner

apprehends that his application for regular bail may not be

considered by the learned Magistrate on merits in accordance

with law and expeditiously. He further apprehends that before

he surrenders before the learned Magistrate, he may be arrested

and dragged to court in execution of the non-bailable warrant of

arrest issued by the learned Magistrate. It is prayed that

directions under Sec.438 and/or Sec.482 of the Cr.P.C. may be

issued in favour of the petitioner.

3. The learned Public Prosecutor opposes the application.

The petitioner has been absconding for a long period of time

without any justification. He may be directed to surrender

before the learned Magistrate and seek regular bail, submits the

learned Public Prosecutor.

4. I have considered all the relevant inputs. After the

decision in Bharat Chaudhary and another v. State of Bihar

(AIR 2003 SC 4662), it is by now trite that powers under

B.A. No. 5786 OF 2007 -: 3 :-

Sec.438 of the 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, that

any such reasons exist.

5. 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 the petitioner’s

application for regular bail on merits in accordance with law and

expeditiously. No special or specific directions appear to be

necessary. Every court must do the same. Sufficient general

directions on this aspect have already been issued in the decision

reported in Alice George v. Deputy Superintendent of Police

(2003 (1) KLT 339).

4. In the result, this bail application is dismissed; but with

the observation that if the petitioner surrenders before the

learned Magistrate and seeks bail, after giving sufficient prior

notice to the Prosecutor in charge of the case, the learned

B.A. No. 5786 OF 2007 -: 4 :-

Magistrate must proceed to pass appropriate orders on merits

and expeditiously – on the date of surrender itself.

Sd/-

(R. BASANT, JUDGE)

Nan/

//true copy//

P.S. to Judge

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