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.
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B.A. No. 5786 OF 2007
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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
