IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2492 of 2007()
1. P.JAYAN, S/O. PADMANABHAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.V.VENUGOPALAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :03/08/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.2492 of 2007
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Dated this the 3rd day of August, 2007
O R D E R
The petitioner faces indictment in a prosecution for the offence
punishable under Section 8 of the Kerala Abkari Act. The alleged
incident took place on 18.08.03. The petitioner was not arrested in
the course of investigation. Investigation is now complete. Final
report has been filed. The committal court has taken cognizance.
Committal proceedings has been registered. A warrant of arrest has
been issued against the petitioner. The petitioner apprehends
imminent arrest.
2. According to the petitioner, he is absolutely innocent. His
omission to appear earlier was not wilful. The petitioner is now willing
to appear and apply for bail and co-operate with the court for
expeditious disposal of the case. The petitioner apprehends that his
application for bail may not be considered by the learned Magistrate on
merits, in accordance with law and expeditiously. Such petition for bail
has to be considered in the light of the decision in Sukumari v. State
of Kerala [2001(1) K.L.T 22] and Alice George v. The Deputy
Superintendent of Police [2003(1) KLT 339]. Appropriate direction
may be issued under Section 438 and/or 482 Cr.P.C may be issued,
submits the learned counsel for the petitioner.
3. After the decision in Bharat Chaudhary v. State of Bihar
[A.I.R 2003 S.C 4662], it is well settled that powers under Section 438
Crl.M.C.No.2492 of 2007 2
Cr.P.C can be invoked even in favour of an 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 these cases.
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.
5. This Crl.M.C 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.
6. Hand over a copy of this order to the learned counsel for
the petitioner.
(R.BASANT, JUDGE)
rtr/-
//True copy// PA to Judge
Crl.M.C.No.2492 of 2007 3