IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 Bail Appl..No. 10214 of 2011 LP.30/2009 of J.M.F.C.I, HARIPAD CRIME NO.40 OF 2007 OF KANAKAKKUNNU POLICE STATION PETITIONER/5TH ACCUSED: ------------------------------------------- P.PRATHAP, S/O.PRABHAKARAN PILLAI, AGED 25, PULIYARA, MUTHUKULAM SOUTH, MUTHUKULAM P.O., KARTHIKAPALLY TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.K.R.SUNIL RESPONDENT: COMPLAINANT: --------------------------- THE SUB INSPECTOR OF POLICE, KANAKAKUNNU POLICE STATION, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.R.RANJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 10214 OF 2011 ------------------------------------------------------ Dated this the 12th day of December, 2011 O R D E R The petitioner apprehends arrest in execution of the non- bailable warrant issued by the Court of the Judicial Magistrate of the First Class I, Haripad in L.P.No.30 of 2009. Hence, the petitioner has filed this application for anticipatory bail. It is stated that the petitioner was accused No.5 in Crime No.40 of 2007 of Kanakakkunnu Police Station. 2. It is stated in the Bail Application thus: “2. In fact all the accused persons were apprehended by the respondent and later on enlarged by the Judicial First Class Magistrate Court I, Haripad. In fact the defacto complainant alleges that the petitioner beaten him with a stick and he sustained pain on his left hand and right leg. The respondent after a thorough investigation filed final report against all the accused before the Judicial First Class Magistrate Court I, Haripad and the same was committed to the Hon'ble Principal Sessions Court, Alappuzha as S.C.No.305/2008. The proceedings against the petitioner was split up as L.P.No.30/2009 and the BAIL APPL. NO.10214 OF 2011 :: 2 :: learned Magistrate recording the absence of the petitioner issued non bailable warrant and is pending. 3. The petitioner thereafter got an employment abroad at Qatar and working there at Ras Laffan Industrial City as a welder. The identity card with the endorsement of the petitioner's status and residence is produced herewith and may be marked as Annexure A1. 4. Due to the employment abroad, the petitioner could not appear before the court below to proceed with the trial. Now the respondent on the basis of the warrant issued by the Judicial First Class Magistrate Court I, Haripad is charging the petitioner for an arrest and the petitioner apprehends physical and mental torture at the instance of the defacto complainant. The court below without issuing a summons for his appearance ordered non bailable warrant. The absence of the petitioner before the court below is not wilful or deliberate and only due to his employment abroad. The learned Magistrate who misunderstood, issued non bailable warrant for procuring his attendance.” 3. In Vineeth Somarajan @ Ambady v. State of Kerala (2009 (3) KHC 471), it was held that where non-bailable warrant is BAIL APPL. NO.10214 OF 2011 :: 3 :: 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 closed with liberty to the petitioner 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 petitioner, 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/