IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 5245 of 2007()
1. VINOD @ VINOD KUMAR,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.K.MUHAMMED
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :06/09/2007
O R D E R
R. BASANT, J.
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B.A.No. 5245 of 2007
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Dated this the 6th day of September, 2007
O R D E R
Application for anticipatory bail. The petitioner faces
allegations, inter alia, under Section 304 I.P.C. The petitioner was
enlarged on bail at the crime stage. Investigation is complete and
final report has already been filed. The petitioner was not available
before the committal court. The co-accused have already been
committed and the case against them is pending before the Sessions
Court as S.C.460 of 2004. The case against the petitioner was split
up and is continuing as C.P.96 of 2003 before the learned Magistrate.
That case has since been transferred to the list of long pending cases
also. Coercive process have been issued against the petitioner. The
petitioner finds a warrant of arrest issued by the learned Magistrate
chasing him. He is the third accused.
2. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. His absence was not wilful, but was
due to reasons beyond his control. He had no knowledge of the
commencement of the proceedings after the filing of the final report.
B.A.No. 5245 of 2007
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The petitioner is willing to appear before the learned Magistrate, 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 438 and/or 482 Cr.P.C.
may be issued in favour of the petitioner.
3. The learned Prosecutor opposes the application. He submits that
there are no circumstances to justify the invocation of the powers under
Section 438 Cr.P.C. in favour of the petitioner.
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 a 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.
5. 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
B.A.No. 5245 of 2007
3
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. 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).
6. This application is accordingly dismissed. I may however hasten
to observe that if the petitioner appears 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 orders on
merits, in accordance with law and expeditiously – on the date of surrender
itself.
(R. BASANT)
Judge
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