IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 Bail Appl..No. 1954 of 2008() ----------------------------- CRIME NO. 441/04 OF KASARAGOD POLICE STATION PETITIONERS/ACCUSED --------------------------- 1. MUNAVAR AHAMED KHAN,AGED 43 YEARS S/.LATE AZEEZ AHAMED KHAN, M.M.STEEL FURNITURE BIBI ROAD, CHIKKABALAPURA TOWN & JUNCTION. 2. AMAJAD PASHA, AGED 32 YEARS, S/O. AMEER JAN, R/AT HUSSAIN KHAN COMPOUND D.NO. 1336, CHIKKABALLAPUR TOWN & JUNCTION BY ADV. SRI.K.ANAND RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. THE SUB INSPECTOR OF POLICE KASARAGOD. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1954 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of March, 2008 O R D E R Application for anticipatory bail. The petitioners face allegations in a crime registered under Section 379 I.P.C. The allegations relate to theft of a motor bike, submits the learned Prosecutor. Investigation is now complete. Final report has already been filed. Cognizance has been taken. The case is now pending before the J.F.M.C. Kasargode. The petitioners submit that no notice or summons were served on the petitioners. But reckoning them as absconding, the learned Magistrate has issued coercive processes. Such processes are chasing the petitioners now. 2. According to the petitioners their absence was not willful. They had no knowledge about the proceedings pending against them. The learned counsel for the petitioners submits that the petitioners are willing to appear before the learned Magistrate. But they apprehend that their applications for bail B.A.No. 1954 of 2008 2 may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. 3. The learned Prosecutor opposes the application. He submits that the petitioners may be directed to surrender before the learned Magistrate and seek regular bail. 4. 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 petitioners, who apprehend 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. 5. It is certainly 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 have no reason to assume that the learned Magistrate would not consider the applications for bail to be filed by the B.A.No. 1954 of 2008 3 petitioners when they surrender 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). 7. This application is accordingly dismissed. I may however hasten to observe that if the petitioners appear 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 orders on merits, in accordance with law and expeditiously - on the date of surrender itself. (R. BASANT) Judge tm