IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 Bail Appl..No. 8069 of 2011 SC.444/2011 OF PRINCIPAL SESSIONS COURT, KOLLAM CRIME NO.539 OF 2007 OF KARUNAGAPPALLY POLICE STATION, KOLLAM. PETITIONERS: ACCUSED NOS.1 AND 2: -------------------- 1. SUDHEER RAJU, S/O.RAJU, THENGUMTHARA KIZHAKKATHIL (CHEERAMKULATHU KIZHAKKATHIL), PULIYOOR VANCHI EAST, THODIYOOR VILLAGE, KARUNAGAPPALLY, KOLLAM. 2. NOUSHAD @ BIJU, THODINTEKIZHAKKATHIL (KIZHAKKEPARAMBIL), PULIYOOR VANCHI NORTH, THODIYOOR VILLAGE, KARUNAGAPPALLY, KOLLAM. BY ADV. SRI. SIJU KAMALASANAN SMT.BINDU GEORGE RESPONDENT: --------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, KARUNAGAPPALLY POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 8069 OF 2011 ------------------------------------------------------ Dated this the 29th day of September, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in S.C.No.444 of 2011 on the file of the Principal Sessions Court, Kollam. It is submitted that the petitioners were arrested and released on bail at the crime stage and that they appeared before the Court of the Judicial Magistrate of the First Class, Karunagappally on summons. It is stated that the petitioners were released on bail during the committal proceedings. The petitioners were summoned to appear before the Sessions Court on 15.7.2011. They did not appear on that date and a non-bailable warrant was issued against the petitioners. According to the petitioners, they could not appear on 15.7.2011 for reasons beyond their control. The petitioners apprehend arrest in execution of the non-bailable warrant issued against them and, therefore, they have filed this application for anticipatory bail. 2. In Vineeth Somarajan @ Ambady v. State of Kerala BAIL APPL. NO.8069 OF 2011 :: 2 :: (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 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). In the facts and circumstances of the case, the Bail Application is disposed of with liberty to the petitioners to approach the Court which issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioners, the learned Magistrate shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/