IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Bail Appl..No. 6636 of 2009() ----------------------------- CRIME NO.589/2004 OF TIRUR POLICE STATION C.C.NO.426/2005 OF JFCM, TIRUR .................... PETITIONER : 1ST ACCUSED ------------------------------ THENGIL ISMAIL, S/O. MOIDEEN BAVA VETTOM AMSOM, PARAVANNA DESOM, TIRUR TALUK, MALAPPURAM. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): --------------- THE STATE OF KERALA,REPRESENTED BY THE STATION HOUSE OFFICER, TIRUR POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.6636 of 2009 --------------------------------------------- Dated this the 17th day of November, 2009 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the first accused in C.C.No.426 of 2005 on the file of the court of the Judicial Magistrate of the First Class, Tirur. 2. The offence alleged against the petitioner is under Section 498A read with Section 149 of the Indian Penal Code. 3. The learned counsel for the petitioner submitted that according to the defacto complainant, the incident occurred on 9.10.2004. The petitioner submits that on 9.10.2004, the defacto complainant attacked the mother and nephew of the petitioner and they were admitted in the hospital. Annexures A1 and A2 copies of Accident Register-cum-wound certificates are produced to support that contention. It is also submitted that the petitioner was about to go abroad on 19.10.2004. The defacto complainant filed a complaint before the Magistrate's court on 19.10.2004 and on the same day, the complaint was referred to the police for investigation under Section 156(3) of the Code of BA No. 6636/2009 2 Criminal Procedure. It is submitted that the attempt of the defacto complainant was to prevent the petitioner from going abroad. 4. The learned counsel for the petitioner also submitted that the petitioner went abroad on 19.10.2004 and he came back to India only recently in 2009. By that time, non bailable warrant was issued by the court to arrest the petitioner. The petitioner apprehends arrest in execution of the non bailable warrant. It is also submitted that efforts are being taken to settle the disputes between the parties. 5. In Vineeth Somarajan @ Ambady vs. State of Kerala (2009(3) KHC 471), it was held that when 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 invoking Section 438 of the Code of Criminal Procedure. It was also held in that decision that when such an application for bail is filed, the learned Magistrate has to dispose of the Bail Application in BA No. 6636/2009 3 the light of the principles laid down in Biju vs. State of Kerala (2007(2) KLT 280). 6. The petitioner will be free to bring to the notice of the Magistrate's court the facts stated above and convince the court that he did not appear before court only in the circumstances mentioned above. Reserving the right of the petitioner to move for regular bail and for an order to recall the warrant as mentioned above, the Bail Application is closed. The learned Magistrate shall dispose of the application filed by the petitioner in accordance with law and in the light of the decisions referred to above. K.T.SANKARAN, JUDGE csl