IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 Bail Appl..No. 6910 of 2011() ----------------------------- Crime No.78 of 2003 of North Police Station, Ernakulam PETITIONER/ACCUSED -------------------------------------- ABDUL RAHIM, AGED 43 YEARS, S/O.LATE MUHAMMED, THACHAVALLATH HOUSE, THAIKKATTUKARA, ALUVA-683 106. BY ADV. SRI.K.ANAND MRS.S.SREELAKSHMY SRI.M.V.SASIDHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, ERNAKULAM. 2. THE STATION HOUSE OFFICER, NORTH POLICE STATION, ERNAKULAM. BY P.P.SRI.V.MANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------- B.A. No.6910 OF 2011 --------------------------------- Dated this the 1st day of September, 2011 ORDER The petitioner apprehends arrest in execution of the warrant issued by the Judicial Magistrate of the First Class-II, Ernakulam in C.C.No.2042 of 2003. The crime was registered as Crime No.78 of 2003 of North Police Station, Ernakulam under Sections 406 and 420 of the Indian Penal Code. It is stated that the defacto complainant Kodak Mahindra Bank alleged that the amounts were due in a loan account and that the amount was not paid. 2. The learned counsel for the petitioner submits that the full amount payable to Kodak Mahindra Bank was paid and the matter was settled between the parties. The petitioner was not arrested during the crime stage. He did not receive any summons from the court also. He was working abroad and he did not know that he was not involved in any case pending before Court. It is therefore, B.A. No.6910 OF 2011 2 submitted that if the petitioner is remanded to judicial custody, he would be put to irreparable injury. The learned counsel submits that if the petitioner surrenders before the Magistrate's Court, it is most likely that he would be remanded. 3. 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). 4. 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. B.A. No.6910 OF 2011 3 In the peculiar facts and circumstances of the case, there will be a direction to the Magistrate's Court to consider the Bail Application on the date on which the same is filed by the petitioner. K.T.SANKARAN, JUDGE. cms