JUDGMENT : H.P. Sandesh, J. I have heard the learned counsel appearing for the petitioners and the learned Government Pleader for the respondent-state. 2. The factual matrix of the case is that the deceased left the house in the month of April 2010 and he did not turn up and that on 03.09.2016 a complaint is lodged and that on 07.09.2016, these petitioners were arrested in Crime No.247/2016 on the file of Kengeri Police for the offence punishable under Sections 399 and 402 of IPC. At that time, the petitioners have revealed that they committed the murder of the son of the complainant in connection with the dispute with regard to the amount payable to accused No.1 for an amount of Rs. 2,50,000/- and life threat was caused and ultimately the deceased Anjini was eliminated. Based on the voluntary statement the case in Crime No.154/2016 for the offences punishable under Sections 143, 147, 302, 201 r/w 34 of IPC and Section 3(2)(v) of SC/ST (POA) Act, 1989. Now the police have completed the investigation and filed the charge sheet. 3. The main contention of the petitioners before this Court is that the deceased was missing since April- 2010 and missing complaint came to be filed on 03.09.2016 and these two petitioners were implicated based on the voluntary statement and no material is collected by the I.O. with regard to the financial capacity of the first accused to pay the huge sum of Rs. 2,50,000/- to the son of the complainant and the first accused is a lorry driver and the deceased is also a lorry driver. Unless the prosecution establish that there was a motive to commit the murder and the body is recovered, there cannot be any allegation against these petitioners that they have committed the murder and so also Section 3(2)(v) of SC and ST Act, 1989 are not attracted. No reasons are forthcoming why they kept quite for almost eight years and this is totally unnatural and weak piece of evidence which cannot be formed as basis for conviction and the delay has not been explained. No reasons are forthcoming why they kept quite for almost eight years and this is totally unnatural and weak piece of evidence which cannot be formed as basis for conviction and the delay has not been explained. The place wherein the dead body was buried is on the top of hillock and though these petitioners allegedly shown the place of the burial of the body and the same is not recovered and except the alleged the extra-judicial confession, there is no material to prove that these petitioners have committed the murder and hence the petitioners are entitled for bail. 4. The counsel appearing for the petitioners also reiterated the grounds urged in the petition and further contend that no body is recovered and there is no any other recovery at the instance of these petitioners and the prosecution has not collected any prima facie material against the petitioners and hence the petitioners are entitled for bail. 5. Per contra, the learned HCGP in his argument he contends that these petitioners were arrested in connection with Crime No.247/2016 of Kengeri Police Station and they revealed that they have committed the murder of the deceased Anjini and hence there was a delay in registering the case against these petitioners. It is further contended that these petitioners were secured before the concerned Court by issuing body warrant and they have also given the custody and after the completion of the police custody they were sent to Parappana Agrahara jail since they were in custody in Crime No.247/2016. The petitioners are arrested by issuing body warrant against them and also given to the police custody and hence the petitioners cannot invoke Section 438 of Cr.P.C. and there is a bar and once the petitioners are secured by issuing body warrant, the Court cannot invoke Section 438 of Cr.P.C. 6. In reply to the arguments, the counsel appearing for the petitioners cited the judgment of this Court passed in Crl.Pet.1697/2014 and brought to my notice para 5 of the judgment and contends that mere issuance of body warrant against the accused in connection with other case cannot be construed that they were in custody. The order of issuing body warrant/production warrant cannot be construed as an authorization for detaining the person. Body warrant would be issued only for the purpose of securing the person who is already detained in custody in another case. The order of issuing body warrant/production warrant cannot be construed as an authorization for detaining the person. Body warrant would be issued only for the purpose of securing the person who is already detained in custody in another case. The body warrant cannot mean that the same shall be an authorization to curtail the liberty of a person and to keep him in custody till the date on which the production is ordered for. If the prisoner who is already detained in 'A' case gets an order of bail and complies with all the conditions of the bail order, he shall have to be released pursuant to such bail order, even if the body warrant is issued to the said prisoner in another case i.e., 'B' case in the meanwhile. The Prison Authorities in such case cannot treat the body warrant in 'B' case as an authorization to detain the prisoner till he is produced before the 'B' Court. Thus merely because the body warrant was served on the Jail authorities for production of the detenue who was already detained in RC No.15(A)/2012, it cannot be said that such prisoner was deemed to have been detained in RC No.13(A)/2012 also. Since warrant of arrest was not issued by the Court in RC No.13(A)/2012 for arresting the respondent, the accused/respondent could not have been arrested and produced before the Court below in RC No.13(A)/2012. On the other hand, because of body warrant, the respondent/accused had to be taken from the prison premises to the Court before which RC No.13(A)/2012 is pending merely for production before the said Court. Thereafter it was always open for the Presiding Officer of the Court below to decide as to whether the custody of the respondent should be given to the Investigating Officer in RC No.13(A)/2012 or not. Under given circumstances, if the Court feels that it is not a fit case for granting custody of the prisoner to the investigating officer for custodial investigation, it may even refuse to do so. Only if the Court were to decide that it is necessary to have the respondent in the custody of the investigating officer for custodial investigation, the custody of the respondent would be given to the investigating officer. Only if the Court were to decide that it is necessary to have the respondent in the custody of the investigating officer for custodial investigation, the custody of the respondent would be given to the investigating officer. Therefore the detention of the respondent in RC No.13(A)/2012 would begin only after the Presiding Officer of the Court below passed an order directing handing over of custody of the respondent to the Investigating Officer in RC No.13(A)/2012 and not earlier thereto. 7. Having heard the arguments of the petitioners' counsel and also the learned HCGP, this Court has to examine whether this Court can invoke Section 438 of Cr.P.C. to grant the anticipatory bail in favour of the petitioners. 8. In keeping the contentions of the petitioners' counsel and the learned HCGP, this Court first has to examine whether the petitioners were in custody in respect of this crime and whether they are debarred from invoking Section 438 of Cr.P.C. On perusal of the records it reveals that in Crime No.154/2016 i.e. in this particular case, these petitioners were secured by issuing body warrant since these petitioners were in custody in Crime No.247/2016 and on the request of the concerned police, they were also given to police custody for a period of three days and after the police custody the order sheet dated 03.10.2016 discloses that the accused taken to the J.C. and sent back to Parappana Agrahara jail from where they are brought and accused be taken under proper police escort and order sheet reveals that thereafter the Court below either not extended their custody or secured these petitioners and subsequently when they got bail in other crime number they were released and the matter is also committed to the Sessions Court and the Sessions Court order sheet reveals that non-bailable warrant has been issued against these petitioners. In view of the order of the Division Bench of this Court in Crl.Pet.No.1697/2014, it is made clear that only the accused/petitioners have been secured by issuing body warrant and further held that there cannot be a deemed custody and they are in custody and the body warrant cannot mean that the same shall be an authorization to curtail the liberty of a person and to keep him in custody till the date of which the production is ordered for. I have already pointed out that there is no order with regard to keeping them in custody and also records reveals that they have already released and only the body warrant was issued for securing the persons who are already detained in custody in another case and hence the contention of the learned HCGP that the very petition is not maintainable cannot be accepted. 9. Now let me appreciate with regard to the facts of the case and with regard to exercising powers under Section 438 of Cr.P.C. On perusal of the complaint averment, it discloses that the deceased left the house in the year 2010 itself and missing complaint was given in the year 2016 i.e. on 03.09.2016 and subsequent to filing of the missing complaint, that on 07.09.2016 came to know that these petitioners and accused No.1 have committed the murder of the said Anjini and the same is revealed only in the voluntary statement of accused persons when they were arrested in Crime No.247/2016 of Kengeri Police Station and further it appears that they eliminated the deceased only in connection with dispute for an amount of Rs. 2,50,000/-. 10. The counsel appearing for the petitioners has contended that the body is not recovered and no recovery at the instance by these petitioners and the prosecution relied upon voluntary statement and also the statement of the some of the witnesses CWs.8 and 9 according to them accused No.1 has made extra-judicial confession before them in the year 2010 itself and CW.20 in whose shop these petitioners have purchased the implements in order to cremate the body of the Anjini and in the case on hand first of all there is no recovery and also no body is recovered and also the alleged murder is of the year 2010 itself and only on the voluntary statement of the accused persons,, the case has been registered and investigated and filed the charge sheet. 11. Having considered the peculiar circumstances of the case and also no body is recovered and no recovery at the instance of the petitioners and merely because of the voluntary statement of the petitioners, it is not proper on the part of this Court to refuse the bail petition of the petitioners. 12. In view of the discussions made above, I proceed to pass the following: ORDER The petition is allowed. 12. In view of the discussions made above, I proceed to pass the following: ORDER The petition is allowed. The petitioners are directed to appear before the Investigation Officer of the concerned police station within fifteen days from the date of supply of certified copy of this order on any working day and on their appearance, the Investigating Officer shall interrogate the petitioners on the same day and shall enlarge them on bail on obtaining a bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) each with one surety for the like sum to his satisfaction and subject to the following conditions: (i) The petitioners shall not tamper the prosecution witnesses. (ii) The petitioners shall mark their attendance before the concerned jurisdictional police till the conclusion of the trial on every 15th of the calendar month.