IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 12TH SEPTEMBER 2007 / 21ST BHADRA 1929 Bail Appl..No. 5533 of 2007() ----------------------------- CRIME NO. 111 OF 2007 OF MAVELIKKARA POLICE STATION PETITIONERS/ACCUSED: ------------------------------------- KOCHUMON A.K., AGED 36, S/O. KARUNAKARAN, AMBRACHIRAYIL HOUSE, ANAPARAMBAL NORTH, THALAVADY. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR SRI.T.P.PRADEEP RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 5533 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of September, 2007 O R D E R Application for anticipatory bail. The petitioner faces allegations under Sections 408 and 409 I.P.C. The crime has been registered on the basis of a private complaint registered before the learned Magistrate and referred to the police by the learned Magistrate under Section 156(3) Cr.P.C. The petitioner has come to this Court during the pendency of the investigation praying for issue of directions under Section 438 Cr.P.C. 2. The learned Prosecutor, after taking instructions, submits that the investigation is already complete. Final report has already been filed. Cognizance has been taken by the learned Magistrate. It is not, in these circumstances, necessary to issue any direction under Section 438 Cr.P.C. The police do not want to arrest the petitioner. It is for the petitioner to surrender before the learned Magistrate and seek regular bail. 3. I have considered all the relevant inputs. It is trite after the decision in Bharat Chaudhary v. State of Bihar (AIR 2003 SC B.A.No. 5533 of 2007 2 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 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 B.A.No. 5533 of 2007 3 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