IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 Bail Appl..No. 7908 of 2011 CRIME NO.494 OF 2006 OF EZHUKONE POLICE STATION, KOLLAM. PETITIONER/ACCUSED NO.4 -------------------------------------------- RAJ @ PODIMON, S/O. SASIDHARAN, M R BHAVAN, KAREEPRA, KADAYKKODU.P.O., EZHUKONE, KOLLAM, KERALA. BY ADV. SRI.GEORGE BRISTON SRI.TOJAN J. VATHIKULAM SRI.V.P.PRASANTH RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, EZHUKONE POLICE STATION, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 7908 OF 2011 ------------------------------------------------------ Dated this the 4th day of October, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.4 in Crime No.494 of 2006 of Ezhukone Police Station, Kollam District, which is now pending as C.C.No.470 of 2011, on the file of the Court of the Judicial Magistrate of the First Class I, Kottarakara. The petitioner apprehends arrest in execution of the non-bailable warrant issued by the Court. 2. It is stated in paragraphs 3 and 4 of the Bail Application thus: “3. It is submitted that the petitioner along with the accused persons was granted bail at the crime stage. Thereafter the investigation was completed and charge was laid before the and the petitioner along with the other accused appeared before the Learned Magistrate after they received notice from the Judicial First Class Magistrate Court-I, Kottarakara. At that stage the case as BAIL APPL. NO. 7908 OF 2011 :: 2 :: numbered as CC No.92 of 2007 and trial was started. The petitioner appeared before the Learned Magistrate. 4. It is submitted that when the case was in trial stage and after the evidence of all the witness were adduced the petitioner use to present the case and when the case was specifically posted for recording of the statement of the petitioner and other accused persons under Section 313 of Code of Criminal Procedure on 01/07/2011 the petitioner got a job in Chennai. It is submitted that thereafter the case was posted to 04/07/2011 and 08/07/2011, 12/07/2011, 18/07/2011 and subsequently on 19/07/2011. It is submitted that on 4/7/2011 the non bailable warrant was issued against the petitioner and on 19/7/2011 after the cancellation of the bail bond of the petitioner, the case against the petitioner was splitted up and renumbered as CC No.470 of 2011 and the in the case CC No.92 of 2007 the judgment was pronounced on 20/7/2011 acquitting the other accused persons. The true copy of the judgment in C.C. No.92 of 2007 dated 20/07/2011 of the Judicial First Class Magistrate Court-I, Kottarakara is produce herewith and marked as Annexure A.” 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. 7908 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 disposed of 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/