IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 Bail Appl..No. 687 of 2010 CRIME NO.122 OF 2002 OF PAVARATTY POLICE STATION, THRISSUR. PETITIONER: ACCUSED: ------------------------------- ABDUL JABBAR, S/O.MOIDUTTY, RESIDING AT VALIYAKATH VEEDU, PADOOR VILLAGE, VENKIDANGU VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.NIMOD.A.R SRI.C.A.ANOOP RESPONDENTS: RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, PAVARATTY POLICE STATION, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 687 OF 2010 ------------------------------------------------------ Dated this the 23rd day of February, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner was accused No.1 in Crime No.122 of 2002 of Pavaratty Police Station, Thrissur District. After completing the investigation, charge sheet was filed in the case on 30.5.2002 before the Court of the Judicial Magistrate of the First Class, Chavakkad. The petitioner did not appear before Court. It is stated that he was working abroad. The case against the petitioner was split up and now it is numbered as L.P.No.91 of 2009. It is stated that some other accused, who appeared before Court, were tried and they were acquitted in S.T.No.2126 of 2006. 2. The petitioner moved for anticipatory bail before the learned Sessions Judge. That application was disposed of by the order dated 19.1.2010 holding that the petitioner has to surrender before the learned Magistrate and to apply for recalling the warrant B.A. NO. 687 OF 2010 :: 2 :: and for the grant of bail. It was also observed in the order that all the contentions can be put forward before the learned Magistrate. 3. It is submitted that the offences alleged against the accused persons are under Sections 143, 147 and 323 read with Section 149 of the Indian Penal Code. All these offences are bailable offences. 4. 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). 5. Reserving the right of the petitioner to move the Court B.A. NO. 687 OF 2010 :: 3 :: which issued the non-bailable warrant, to recall the warrant and to grant bail, this Bail Application is closed. As observed by the learned Sessions Judge, the petitioner will be free to submit all the contentions before the learned Magistrate including the contention that the offences alleged against the petitioner are bailable and that some other accused were acquitted in the case. (K.T.SANKARAN) Judge ahz/