IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 8026 of 2007()
1. SABU, S/O.DEVADASAN, AGED 32 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI. K.SIJU
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :19/12/2007
O R D E R
R. BASANT, J.
-------------------------------------------------
B.A.NO. 8026 OF 2007
-------------------------------------------------
Dated this the 19th day of December, 2007
ORDER
Application for anticipatory bail. The petitioner faces
indictment in a prosecution for offences punishable, inter alia,
under Sec.498A of the IPC. The proceedings have been
initiated on the basis of a private complaint filed by the de
facto complainant i.e., the wife of the petitioner. The
proceedings are pending before the matrimonial court and it is
the case of the petitioner that the strain in the matrimonial
relationship is prompting the complainant to initiate false
proceedings against the petitioner.
2. The petitioner has not been served with any notice,
summons or processes from the court. The learned Magistrate
has now issued a non-bailable warrant of arrest to procure the
presence of the petitioner and has handed over the warrant of
B.A.NO. 8026 OF 2007 -: 2 :-
arrest to the de facto complainant to ensure execution. The
petitioner finds such processes chasing him. He apprehends
imminent arrest.
3. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. He has never been served
with any notice in the proceedings. There is absolutely no
justification in the issue of non-bailable warrant of arrest at the
first instance. It is, in these circumstances, prayed that
directions under Sec.438 and/or Sec. 482 of the Cr.P.C. may be
issued in favour of the petitioner.
4. After the decision in Bharat Chaudhary and another
v. State of Bihar (AIR 2003 SC 4662), it is by now trite that
powers under 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
B.A.NO. 8026 OF 2007 -: 3 :-
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).
6. In the result, this 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 Magistrate
must proceed to pass appropriate orders on merits and
expeditiously – on the date of surrender itself.
7. In the peculiar facts and circumstances of this case,
there shall be a direction that the warrant of arrest issued by the
learned Magistrate against the petitioner shall not be executed
till 29/12/07. On or before that date, the petitioner shall
surrender before the learned Magistrate and seek regular bail.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy// P.S. to Judge