IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 Bail Appl..No. 1004 of 2008() ----------------------------- CRIME NO. 102/05 OF ARTHINKAL POLICE STATION CRMP.269/2008 of DISTRICT COURT, ALAPPUZHA CP.93/2007 of J.M.F.C.-II, CHERTHALA .................... PETITIONERS : ACCUSED NOS.2 & 3: ----------------------------------- 1. ABSHILAS, S/O.VISWAMBHARAN, AGED 28 , ANJILIKKAPPALLY HOUSE, WARD NO.6, CHERTHALA SOUTH PANCHAYAT, CHERTHALA. 2. VISWAMBHARAN, S/O.MADHAVAN, AGED 53 , -DO-, -DO-, -DO-. BY ADV. SRI.C.K.SAJEEV RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1004 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of February, 2008 O R D E R Application for anticipatory bail. The petitioners are accused 2 and 3. They face indictment in a prosecution under the Kerala Abkari Act. Investigation is now complete. Final report has already been filed. Petitioners were not arrested at the crime stage. The third accused has been brought on the array of accused only when final report was filed, submits the counsel. The learned Magistrate, after taking cognizance had issued summons under Section 204 Cr.P.C. The petitioners appeared through counsel and applied for time. That was not accepted and warrant was issued against the petitioners. 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. Investigation is now complete. The petitioners are willing to appear before the learned Magistrate, but they apprehend that their applications for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. B.A.No. 1004 of 2008 2 3. The learned Prosecutor opposes the application. He submits that the petitioners may be directed to appear before the Investigator or the learned Magistrate and then seek regular bail in the normal course. 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 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 their applications for bail to be filed by the petitioners when they surrender before the learned Magistrate, on B.A.No. 1004 of 2008 3 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 decisions in Sukumari v. State of Kerala (2001 (1) KLT 22) and Alice George v. Dy.S.P. of Police (2003 (1) KLT 339). 6. It is seen that the learned Magistrate had issued only summons after taking cognizance to secure the presence of the petitioners. I must assume that the learned Magistrate had chosen to issue summons and not warrant after due application of mind. 6. 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) tm Judge B.A.No. 1004 of 2008 4