IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 Bail Appl..No. 9184 of 2011() ----------------------------------------- C.P. NO.23/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYOLI. S.C. NO.548/2010 OF ASSISTANT SESSIONS COURT, KOYILANDY. ................... PETITIONER/2ND ACCUSED ----------------------------------------- THERUVATH BANGALA KUNHAMMED AGED 46 YEARS, S/O.MOIDU, THERUVATH HOUSE, KUTTIADY, KOZHIKODE BY ADV. SRI.V.G.ARUN, SMT.V.P. SATHI. RESPONDENT/COMPLAINANT: --------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. BY PUBLIC PROSECUTOR MR.REJI JOSEPH. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs P.S.GOPINATHAN, J ---------------------------------- B.A.No.9184 of 2011 ------------------------------------ Dated this the 25th day of November, 2011. ORDER Petition under Section 438 of the Code of Criminal Procedure. Petitioner is the second accused in C.P.No.11/2010 on the file of Judicial First Class Magistrate's Court, Payyoli. He was absconding. Therefore, case against him was split up and re-numbered as C.P.No.23/2010. Arrest Warrant is pending against the petitioner. In this background, the petitioner approached the Sessions Judge, Kozhikode with a petition, Crl.M.C.No.1238/2011 under 438 of the Code of Criminal Procedure. That petition was dismissed. Now this petition. 2. Having due regard to the history of the case, I find that the Sessions Judge is correct in dismissing the petition. Admittedly, non bailable arrest warrant is pending against the petitioner. No judicial proceedings is liable to be interdicted through an order under 438 of the Code of Criminal Procedure. Therefore, this petition is not maintainable. In the result, this petition is dismissed with liberty to the petitioner to apply for regular bail. It is left open to the commital Magistrate to decide the terms and conditions for release of the petitioner on bail, irrespective of the observations in the order of the Sessions Judge. The learned Magistrate shall dispose of the bail application on merits, if possible on the same day, provided due notice is given to the Assistant Public Prosecutor. su P.S.GOPINATHAN, JUDGE