IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 1112 of 2008()
1. MUSTHAFA, S/O. ABDU,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRIC.M.MOHAMMED IQUABAL
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :25/02/2008
O R D E R
R. BASANT, J.
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B.A. No. 1112 OF 2008 D
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Dated this the 25th day of February, 2008
O R D E R
Application for anticipatory bail. Petitioner is the 7th
accused. He, along with the co-accused, faces indictment in
a prosecution for offences punishable, inter alia, under
sections 326 and 307 IPC. Investigation is complete. Final
report has already been filed. Petitioner had been enlarged
on bail at the crime stage, it is submitted. But, after the final
report was filed, the petitioner could not appear as he had
gone abroad in search of employment. Consequently, the
case against the petitioner was split up and coercive
processes have been issued against the petitioner. The
petitioner finds such processes chasing him.
2. The learned counsel for the petitioner submits that
the petitioner is absolutely innocent. His absence earlier was
not wilful or deliberate. The petitioner is willing to surrender
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before the learned Magistrate and seek regular bail. 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, therefore, prays
that directions under Section 438 or 482 Cr.P.C. may be
issued to the learned Magistrate to release the petitioner on
bail when he appears and applies for bail.
3. After the decision in Bharat Chaudhary and
another Vs. State of Bihar [AIR 2003 SC 4662], it is now 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, that any such reasons
exist.
4. 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].
5. In the result, this petition 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)
aks