IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 Bail Appl..No. 7942 of 2011() ----------------------------- LP.523/2006 of J.M.F.C.-II, KOLLAM CRIME NO.396/2005 OF KOTTIYAM POLICE STATION KOLLAM DISTRICT .................... PETITIONER : ACCUSED No.2: ------------------------ DANISH, S/O.KASIM KUNJU, CHEMMANNAVILA VEETIL, NEAR MILAN LODGE, THAZHUTHALA CHERRY, ADICHANALLOOR VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT:COMPLAINANT : -------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOTTIYAM POLICE STATION, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.7942 of 2011 ---------------------------------------------- Dated this the 26th day of September, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner apprehends arrest in execution of a non-bailable warrant issued by the Judicial Magistrate of the First Class-II, Kollam in C.P.No.4 of 2006. It is stated that the petitioner was implicated in the case on a mistaken identity and the petitioner was not aware of the pendency of the crime, the investigation therein and the filing of the charge sheet. Now the case is treated as Long Pending Case as L.P.No.523 of 2006 and a non-bailable warrant was issued against the petitioner. 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 whom the warrant is issued has to approach the Court which issued the warrant for re-calling the warrant and for the grant Bail Appln.No.7942/2011 : 2 : 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. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. 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. K.T.SANKARAN, JUDGE skj