IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 Bail Appl..No. 965 of 2010() ---------------------------- CRIME NO.169/09 OF KADACKAL POLICE STATION .................... PETITIONER : ACCUSED NO.4 ------------------------------------------- DEEPU, S/O.VASUDEVAN SYAMALAMANDIRATHIL, ALANKODU, KOTTUKKAL VILLAGE KOTTARAKARA. BY ADV. SRI.ALEXANDER GEORGE RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS DIRECTOR OF PUBLIC PROSECUTION HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE KADACKAL POLICE STATION, KOLLAM DISTRICT. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.965 of 2010 --------------------------------------------- Dated this the 22nd day of February, 2010 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.4 in C.P.No.12 of 2010 on the file of the court of the Judicial Magistrate of the First Class-II, Kottarakara. 2. It is stated that the offences alleged against the petitioner and the other accused are under Sections 143, 147, 148, 120(B), 341, 324, 326 and 308 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act. 3. The crime was registered as Crime No.169 of 2009 of Kadackal Police Station. Final report was filed. It is stated that during the crime stage, the petitioner was not arrested. After filing the charge sheet, it is stated that the petitioner did not receive summons. However, non bailable warrant was issued by the Judicial Magistrate of the First Class-II, Kottarakara for the arrest of the petitioner. The petitioner apprehends arrest in execution of the non bailable warrant. 4. In Vineeth Somarajan @ Ambady vs. State of BA No.965/2010 2 Kerala (2009(3) KHC 471), it was held that in cases 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 invoking 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 vs. State of Kerala (2007(2) KLT 280). Reserving the liberty 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. K.T.SANKARAN, JUDGE csl