IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 Bail Appl..No. 1662 of 2010 C.C.NO.390 OF 1997 ON THE FILE OF TH4E COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS II, NEYYATTINKARA. PETITIONER/ACCUSED -------------------------------------- T.PRASAD, S/O.TITUS, AGED 45, CHOLAMVILA VEEDU, THIRUPURAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENTS: COMPLAINANT -------------------------- 1. STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, POOVAR POLICE STATION, THIRUVANANTHAPURAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CHELLAPPAN NADAR, PRATHIBHA NIVAS, THIRUPURAM P.O., NEYYATTINKARA. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1662 OF 2010 ------------------------------------------------------ Dated this the 24th day of March, 2010 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.6 in C.C.No.390 of 1997 on the file of the Court of the Judicial Magistrate of the First Class-II, Neyyattinkara. 2. The offences alleged against the accused are under Sections 143, 147, 447 and 427 read with Section 149 of the Indian Penal Code. All these offences are bailable. 3. The petitioner was not available before Court. The case against the petitioner was split up and refiled as C.C.No.733 of 2001. 4. As per the judgment dated 17.12.2001, the other accused persons were acquitted. 5. It is stated by the petitioner that he is a photographer and he is working in Bombay. After filing the charge, he was not aware B.A. NO.1662 OF 2010 :: 2 :: of the proceedings. It is submitted that if the petitioner appears before the Magistrate's Court, there is every chance of the petitioner being detained. 6. Now a non-bailable warrant is pending against the petitioner. The petitioner apprehends arrest in execution of the non- bailable warrant. Therefore, he has filed this application for anticipatory bail. 7. In Vineeth Somarajan @ Ambadi 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). B.A. NO.1662 OF 2010 :: 3 :: 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 ahz/