IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 Bail Appl..No. 338 of 2010 C.P.NO.103 OF 2008 ON THE FILE OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS II, THIRUVANANTHAPURAM PETITIONERS/AI AND A2 ---------------------------------------- 1. VIJAYAKUMAR, S/O.RAVEENDRAN T.C.4/1905, KALAMUKKAM PARA KOLLUMURIYIL, ATTIPARA VILLAGE. 2. AJAYAKUMAR, S/O.RAVEENDRAN, A2 T.C.4/1905, KALAMUKKAM PARA, KOLLUMURIYIL, ATTIPARA VILLAGE. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.P.M.SANEER RESPONDENT: --------------- THE SUB INSPECTOR OF POLICE VALIYATHURA POLICE STATION REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 338 OF 2010 ------------------------------------------------------ Dated this the 2nd day of February, 2010 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 C.P.No.103 of 2008, on the file of the Court of the Judicial Magistrate of the First Class II, Thiruvananthapuram. 2. The offences alleged against the petitioners are under Sections 341, 294(b), 323, 326 and 308 read with Section 34 of the Indian Penal Code. 3. After completing the investigation, charge sheet was filed in the case and the case is pending as C.P.No.103 of 2008 before the Court of the Judicial Magistrate of the First Class II, Thiruvananthapuram. It is stated that non-bailable warrant is issued by the Court against the petitioners. The petitioners apprehend arrest in execution of the non-bailable warrant and, therefore, they have filed this Bail Application under Section 438 of the Code of Criminal Procedure. B.A. NO. 338 OF 2010 :: 2 :: 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 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 petitioners 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 ahz/