IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 Bail Appl..No. 9201 of 2011() ----------------------------- AGAINST THE ORDER IN LP.28/2009 IN CP.67/2007 of J.M.F.C.,IRINJALAKUDA CRIME NO.794/2001 OF IRINJALAKUDA POLICE STATION .................... PETITIONER/ACCUSED NO.1: ------------------------------------------- SHIHAB, S/O.MUHAMMADALI, 34 YEARS, KARIPPAKULAM HOUSE, CHERIYAPALAM, KARUVANNOOR, THRISSUR DISTRICT. BY ADV. SRI.A.C.DEVY RESPONDENT: --------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.9201 of 2011 ---------------------------------------------- Dated this the 14th day of December, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. It is stated that the petitioner is the first accused in L.P.No.28 of 2009 in C.P.No.67 of 2007 on the file of the court of the Judicial Magistrate of the First Class, Irinjalakuda. 2. The offences alleged against the petitioner are under Sections 366(A), 376 and 34 of the Indian Penal Code. 3. The Bail Application is silent as to the circumstance under which warrant was issued against the petitioner. It is only stated that the petitioner was out of station in connection with his employment and due to non-appearance of the petitioner, learned Magistrate issued non-bailable warrant. 4. In Vineeth Somarajan @ Ambady v. State of Kerala (2009 (3) KHC 471), it was held that where non- bailable warrant is issued by the court on account of non- appearance of the accused, normally, the person against whom the warrant is issued has to approach the Court which Bail Appln.No.9201/2011 : 2 : issued the warrant for re-calling the warrant and for the grant of bail. He cannot, normally, straight away approach the High Court by filing a Bail Application under Section 438 of the Code of Criminal Procedure. It was also noticed in that decision that when such an application for bail is filed, the learned Magistrate has to dispose of the Bail Application in the light of the principles laid down in Biju v. State of Kerala (2007 (2) KLT 280). Reserving the right of the petitioner to move the Court which issued the non-bailable warrant, to recall the warrant and to grant bail, this Bail Application is closed. K.T.SANKARAN, JUDGE skj