IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1799 of 2008()
1. SHAJI, S/O. JOSE
... Petitioner
Vs
1. THE STATE OF KERALA
... Respondent
For Petitioner :SRI.V.V.NANDAGOPAL NAMBIAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :02/05/2008
O R D E R
R.BASANT, J.
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Crl.M.C.No.1799 of 2008
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Dated this the 2nd day of May 2008
O R D E R
The petitioner faces indictment in a prosecution under the
Kerala Abkari Act. Investigation is complete. Final report has
already been filed. Committal proceedings has been registered.
The petitioner has not been arrested or released on bail so far.
Reckoning him as an absconding accused, coercive processes have
been issued against the petitioner by the learned Magistrate. The
petitioner apprehends imminent arrest.
2. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. His absence earlier was not wilful
or deliberate. The petitioner is willing to surrender before the
learned Magistrate 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.
He, therefore, prays that directions under Section 482 Cr.P.C. may
be issued to the learned Magistrate to release the petitioner on bail
when he appears and applies for bail.
3. In Bharat Chaudhary v. State of Bihar [AIR 2003 SC
4662] it is well settled that powers under Section 438 Cr.P.C can be
invoked even in favour of the accused who apprehends arrest in
execution of a non bailable warrant issued in a pending
Crl.M.C.No.1799/08 2
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 this case.
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 find absolutely no reason to assume that the
learned Magistrate would not consider the application for bail to be
filed by the petitioner on merits, in accordance with law and
expeditiously. Every court must do the same. No special or specific
directions appear to be necessary. Sufficient general directions
have been issued in Alice George vs. Deputy Superintendent of
Police [2003(1)KLT 339].
5. In the result, this Criminal Miscellaneous Case is
dismissed but with the specific observation that if the petitioner
surrenders 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, in accordance with law and expeditiously – on the date of
surrender itself.
(R.BASANT, JUDGE)
jsr
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Crl.M.C.No.1799/08 4
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007