IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 Bail Appl..No. 833 of 2008() ---------------------------- CRIME NO.12/08 OF MOONAR POLICE STATION : PETITIONERS/ACCUSED ---------------------------- 1. MOOKKAN, AGED 35 YEARS, PERIYAVARA ESTATE CENTRAL DIVISION, KDH, VILLAGE, DEVIKULAM TALUK, KDHP COMPANY QUARTERS. 2. RAJANIKANTH, AGED 38 YEARS, PERIYAVARA ESTATE CENTRAL DIVISION, KDH VILLAGE, DEVIKULAM TALUK, KDHP COMPANY QUARTERS. BY ADV. SRI.C.S.SUNIL RESPONDENT/COMPLAINANT: ------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.833 of 2008 ---------------------------------------- Dated this the 13th day of February 2008 O R D E R Application for anticipatory bail. The petitioners face allegations in a crime registered for offences punishable inter alia under Section 452 I.P.C. That is the only non-bailable offence alleged. Investigation is now complete. Final report has already been filed. Cognizance has been taken and the matter is pending before the learned Magistrate, submits the learned Public Prosecutor. 2. The learned Public Prosecutor submits that there are absolutely no circumstances justifying or warranting the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. The petitioners may be directed to surrender before the learned Magistrate and then seek regular bail in the normal course. The police do not want to arrest the petitioners now. It is only in execution of the warrant issued by the learned Magistrate, the petitioners have to be arrested now, submits the learned Public Prosecutor. B.A.No.833/08 2 3. The learned counsel for the petitioners submits that the petitioners are innocent. At any rate, no allegation under Section 452 I.P.C can validly be raised. In these circumstances, the petitioners may be granted anticipatory bail, it is prayed. 4. I have considered the submissions. After the decision 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 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. 5. It is for the petitioners to appear before the learned Magistrate and explain to the learned Magistrate, the circumstances under which they 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 petitioners on merits, in accordance with law and expeditiously. Every court must do the same. No B.A.No.833/08 3 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]. 6.In the result, this bail application is dismissed but with the specific observation that if the petitioners surrender before the learned Magistrate and apply 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 B.A.No.833/08 4 B.A.No.833/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007