IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 Bail Appl..No. 6206 of 2009() -------------------------------------- CRIME NO.536/2008 OF PANOOR POLICE STATION, KANNUR .................... PETITIONER/ACCUSED NO.1: ---------------------------------------------- BINOY, S/O.PADMANABHAN, PADINCHARE PUTHIYEDATH HOUSE, MOKERI AMSOM, VELLANGAD. BY ADV. SRI.P.V.SURENDRANATH RESPONDENT/COMPLAINANT: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. M.S. BREEZ, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 6206 of 2009 ------------------------------------ Dated this the 29th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.1 in Crime No.536/2008 of Panoor Police Station, Kannur. 2. The offences alleged against the petitioner are under Sections 143, 147, 148, 341, 324, 326 and 308 read with Section 149 of the Indian Penal Code. 3. The petitioner states that after filing the charge sheet, he received summons in C.P. No.32/2009 on the file of the Court of the Additional Chief Judicial Magistrate, Thalassery. It is stated on the date fixed for appearance, he could not appear and an application was filed to condone his absence. The learned Magistrate dismissed that application and issued non bailable warrant. It is also submitted that the case against the petitioner was split up and it is numbered as C.P. No.46/2009. The case against other accused were committed to the Sessions Court. 4. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009(3)KHC 471], it was held that in cases where B.A. No. 6206 /2009 2 non-bailable warrant is issued by a court, normally, the accused has to approach that court which issued the warrant and apply for recalling the warrant and for the grant of bail. Instead of the same, the accused cannot straightway approach the High Court with a petition under Section 438 of the Code of Criminal Procedure. It was also observed in Vineeth Somarajan's case that when such an application for withdrawing the warrant and for the grant of bail is filed before the learned Magistrate, the same shall be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007(2) K.L.T 280]. It is well settled principle that even in a case where the offence is exclusively triable by the Sessions Court, the Magistrate can grant bail by exercising the power under Section 437 of the Code of Criminal Procedure {Sukumari Vs. State of Kerala [2001(1) K.L.T. 22] } Reserving the right of the petitioner to move the learned Magistrate for recalling the warrant and for the grant of bail, this Bail Application is closed. Needless to say that if such an application is filed, the learned Magistrate shall consider and dispose of the same in the light of the principles laid down in the aforesaid decisions. K.T. SANKARAN, JUDGE scm