High Court Kerala High Court

Saheer vs State Of Kerala on 3 March, 2008

Kerala High Court
Saheer vs State Of Kerala on 3 March, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl No. 1483 of 2008()


1. SAHEER, S/O.ABOOBACKER,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REP. BY THE
                       ...       Respondent

                For Petitioner  :SMT.LATHA PRABHAKARAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :03/03/2008

 O R D E R
                               R. BASANT, J.

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                         B.A.No. 1483  of   2008

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                 Dated this the 3rd day of  March, 2008


                                   O R D E R

The petitioner faces indictment in a prosecution for

offences punishable, inter alia, under Sections 326 and 307 I.P.C.

At the crime stage the petitioner was not arrested at all.

According to the petitioner he never knew that there was any

intention to array him as an accused in this crime. Now the

petitioner has received summons from the Magistrate directing

him to appear as an accused in C.P. 2 of 2008 on 7.3.2008.

2. According to the petitioner he is absolutely innocent.

He is not in any way connected with the crime. He is willing to

appear before the learned Magistrate in response to the summons

issued 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.

It is in these circumstances prayed that appropriate directions

may be issued under Section 438 Cr.P.C. in his favour.

B.A.No. 1483 of 2008

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3. 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.

4. It is certainly 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 the application for bail to be filed by the petitioner when he

surrenders before the learned Magistrate, on merits, in accordance with

law and expeditiously. 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).

B.A.No. 1483 of 2008

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7. This application is accordingly dismissed with the specific

observation that the petitioner’s application for regular bail must be

considered by the learned Magistrate and pass orders on merits, in

accordance with law and expeditiously, on the date of surrender itself.

I do note that the learned Magistrate has already exercised his

discretion under Section 204 Cr.P.C. to issue only summons and not a

warrant. I must also assume that the learned Magistrate must have

applied his mind and take an informed decision on that aspect. Having

issued a summons to the petitioner to appear, I think it unlikely that

an accused person would be detained in custody thereafter unless

compelling reasons are there. The decision in Sukumari v. State of

Kerala (2001 (1) KLT 22) has considered this aspect of the matter. I

need only mention that the learned Magistrate must consider the matter

in the light of the decision in Sukumari also.

(R. BASANT)

Judge

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