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. 8081 of 2011() ----------------------------- CC.597/2011 of J.M.F.C., KODUNGALLUR CRIME NO.691/2011 OF KODUNGALLOOR POLICE STATION .................... PETITIONER : ACCUSED: -------------------- SADIQUE, AGED 27 YEARS, S/O SIDDIQUE, TEKKECHALIL HOUSE, S.N. PURAM, KODUNGALLOOR, THRISSUR DIST. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.P.G.PRAMOD RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KODUNGALLOOR POLICE STATION, THRISSUR DISTRICT. (THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM) 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 Appln.No.8081 of 2011 ---------------------------------------------- Dated this the 29th day of September, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.1 in C.C.No.597 of 2011 on the file of the court of the Judicial Magistrate of the First Class, Kodungalloor. It is stated that the summons was issued to the petitioner directing him to appear before Court on 23/09/2011. It is stated that on that day he could not appear before Court due to “unavoidable circumstances”. An advocate was engaged and an application for condoning the absence was filed. It is stated that the application was rejected by the learned Magistrate and non- bailable warrant was issued against the petitioner. The petitioner apprehends arrest in execution of the non-bailable warrant. 2. 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 Bail Appln.No.8081/2011 : 2 : 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). 3. 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. If an application is filed, the learned Magistrate shall dispose of the same on the date of filing of the same. K.T.SANKARAN, JUDGE skj