IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 Bail Appl..No. 89 of 2008() --------------------------- CRIME NO.294/2007 OF KALPETTA POLICE STATION : PETITIONERS/ACCUSED ------------------------------------ 1. JOSY VARGHESE, S/O. VARGHESE, AGED 38 YEARS, RESIDING AT PLAMBARAMBIL VEEDU, PERUNNA WEST, CHANGANASSERY, KOTTAYAM DISTRICT. 2. SONY VARGHESE, S/O. VARGHESE, AGED 36 YEARS, RESIDING AT PLAMBARAMBIL VEEDU, PERUNNA WEST, CHANGANASSERY, KOTTAYAM. BY ADV. SRI.G.SUKUMARA MENON RESPONDENTS: STATE ------------------ 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 10/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.89 of 2008 ---------------------------------------- Dated this the 10th day of January 2008 O R D E R Application for anticipatory bail. The petitioners are accused 3 and 4. Altogether there are four accused persons. The petitioners along with the co-accused face allegations for offence punishable under the Essential Commodities Act and the Kerala Rationing order. The co-accused have been arrested. Petitioners have not been arrested so far. They apprehend imminent arrest. 2. The learned counsel for the petitioners submits that the investigation is already complete and final report has already been filed. The petitioners were not available for arrest and hence they are shown as absconding accused in the final report filed. The petitioners may be directed to surrender before the learned Magistrate and seek regular bail, submits the learned Public Prosecutor. 3. I have considered all the relevant inputs. 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 B.A.No.89/08 2 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 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 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 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.89/08 3 B.A.No.89/08 4 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007