IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 6868 of 2007()
1. RAJNI SUBRAMONIAN, W/O.SUBRAMONIAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :14/11/2007
O R D E R
R. BASANT, J.
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B.A.No. 6868 of 2007
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Dated this the 14th day of November, 2007
O R D E R
Application for anticipatory bail. The petitioner/A2 is the
wife of the first accused. She faces allegations under Section 420
r/w. 34 I.P.C. The crux of the allegations is that the accused
persons, two in number, in furtherance of their common intention
had fraudulently induced the victim to part with money on the
promise that VISA for employment abroad shall be made
available to him. Proper VISA was not furnished. Amount was
not returned. It is in these circumstances that the crime was
registered.
2. The learned counsel for the petitioner submits that the
petitioner is innocent and she may be granted anticipatory bail.
3. The learned Prosecutor opposes the application. He
submits that the investigation is now complete. Final report has
already been filed. C.C.No. 2390 of 2007 has been filed before
the learned Magistrate and cognizance has been taken. It is now
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for the petitioner to appear before the learned Magistrate and seek
regular bail. There are no circumstances justifying or warranting
invocation of the discretion under Section 438 Cr.P.C. in his favour,
submits the learned Prosecutor.
4. I find merit in the opposition by the learned Prosecutor. It is
trite after the decision in Bharat Chaudhary v. State of Bihar (AIR
2003 SC 4662) that powers under Section 438 Cr.P.C. can be invoked
even in favour of a petitioner, who apprehends arrest in the pending
case on the strength of a non-bailable warrant issued by the court.
Even that is not by itself sufficient to justify the invocation of the
jurisdiction under Section 438 Cr.P.C. I am unable to find any
compelling reasons which would justify invocation of the jurisdiction
under Section 438 Cr.P.C.
6. It is certainly for the petitioner to appear before the learned
Magistrate and explain to the learned Magistrate the circumstances
under which she could not earlier appear before the learned Magistrate.
I have no reason to assume that the learned Magistrate would not
consider the application for bail to be filed by the petitioner when she
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surrenders before the learned Magistrate, on merits, in accordance with
law and expeditiously. Every court must do the same. No special or
specific direction appears to be necessary. Sufficient general directions
have already been issued by this Court in the decision in Alice George
v. Dy.S.P. of Police (2003 (1) KLT 339).
7. This application is accordingly dismissed. I may however
hasten to observe that if the petitioner appears before the learned
Magistrate and applies for regular bail after giving sufficient prior
notice to the Prosecutor in charge of the case, the learned Magistrate
must proceed to pass orders on merits, in accordance with law and
expeditiously – on the date of surrender itself.
(R. BASANT)
Judge
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