IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4826 of 2007()
1. PANKAJ BAHIMAN BHATT,
... Petitioner
2. BHARAT BAHIMAN BHATT,
3. BADRAKUMAR,
Vs
1. SUB INSPECTOR OF POLICE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.H.HANIL KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :09/08/2007
O R D E R
R.BASANT, J
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B.A. No.4826 Of 2007
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Dated this the 9th day of August, 2007
ORDER
Petitioners face allegations for offence punishable inter alia under
Sec.448 read with 34 IPC. All offences are bailable but as the final
report shows the petitioners are absconding the learned Magistrate has
issued non bailable warrant at the first instance under section 204
Cr.P.C.
2. According to the petitioners they are absolutely innocent.
They were never absconding. The mere fact that the Investigating
Officer has shown that the petitioners are absconding, the learned
Magistrate should not have chosen to issue non bailable warrant under
Sec.204 Cr.P.C. at the first instance. The petitioners are willing to
appear before the learned Magistrate and seek regular bail, but the
petitioners apprehend that their application for regular bail may not
be considered by the learned Magistrate on merits in accordance with
law and expeditiously. The petitioner prays that directions under
Section 438 may be issued in his favour. In these circumstances,
appropriate directions may be issued under section 438 Cr.P.C, prays
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 trite that powers under Section 438 Cr.P.C
B.A.No.4826 of 2007 2
can be invoked in favour of a person who apprehends arrest in
execution of a non bailable warrant issued by a court after taking
cognizance . I am satisfied that directions under section 438 Cr.P.C
can be issued.
4. In the result, this petition is allowed.
i) Warrant of arrest issued against the petitioners shall not
be executed till on 16.8.07.
ii) They shall appear before the learned Magistrate at 11
a.m. on 16.08.07 they shall be released on regular bail on condition
that they execute bonds for Rs.25,000/-(Rupees twenty five thousand
only) each with two solvent sureties each for the like sum to the
satisfaction of the learned Magistrate.
(iii) If the petitioners do not appear before the learned
Magistrate as directed in clause (i), directions issued above shall
thereafter stand revoked and the police shall be at liberty to arrest the
petitioners and deal with them in accordance with law, as if these
directions were not issued at all.
(v) If they were arrested prior to 16/8/2007, they shall be
released on bail on their executing a bond for Rs.25,000/- (Rupees
twenty five thousand only) without any sureties, undertaking to appear
before the learned Magistrate on 16.08.07.
(R.BASANT, JUDGE)
sj