IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 Bail Appl..No. 5851 of 2009() ----------------------------- CRIME NO.173/1996 OF OLLUR POLICE STATION PETITIONER : ACCUSED ------------------------------ RAJU, AGED 32 YEARS, S/O.PUSHPAN, KOZHIMADATHIL HOUSE, P.O.KUTTANELLOOR, THRISSUR DISTRICT. BY ADV. SRI.K.V.RAMABHADRAN RESPONDENT(S): STATE/COMPLAINANT --------------- SUB INSPECTOR OF POLICE, POLICE STATION OLLUR, THRISSUR DISTRICT. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.5851 of 2009 --------------------------------------------- Dated this the 14th day of October, 2009 ORDER The petitioner apprehends arrest in Crime No.173 of 1996 of Ollur Police Station, Thrissur. There are four accused persons in the case. It would appear that charge was laid before court in 2002. The case was taken on file as C.C.No.712 of 2002. According to the petitioner (accused No.4), he was not served with summons. The court of the Judicial Magistrate of First Class - III, Thrissur split up the case against accused No.4 and the case was treated as long pending against the petitioner. After trial, as per the judgment dated 31st January, 2009, accused Nos.2 and 3 were acquitted. The case against accused No.1 was also split up. 2. Now, the petitioner apprehends arrest as a non bailable warrant is pending against him. The petitioner submits that he was not served with any summons. Annexure C copy of the summons is produced to show that even according to the report of the police constable, summons intended to be served on BA No.5851/2009 2 accused No.4 was served on Vasu, one of his relatives. It is submitted by the learned counsel for the petitioner that Vasu is accused No.3 in the case. 3. In Vineeth Somarajan @ Ambadi vs. State of Kerala (2009(3) KHC 471), it was held that in similar circumstances, the remedy of the accused concerned is to apply to the court which issued the warrant to recall the warrant and apply for bail. It was also held that when such an application for bail is filed, the same shall be dealt with in accordance with the principles laid down in Biju vs. State of Kerala (2007(2) KLT 280). The decision in Vineeth Somarajan @ Ambadi vs. State of Kerala refers to the decision of the Supreme Court in Bharat Chaudhary vs. State of Bihar (2003 (8) SCC 77) wherein the Supreme Court has held that in appropriate cases the power under Section 438 of the Code of Criminal Procedure can be invoked even after the charge sheet is filed in the case. 4. In the facts and circumstances of the case, it would appear that summons was not served on the petitioner. If that is so, on appearance of the petitioner before the learned Magistrate, bail shall be granted to him after recalling the BA No.5851/2009 3 warrant. If the learned Magistrate finds that summons was served on the petitioner later, the learned Magistrate is free to decide the question of granting bail in accordance with law. The Bail Application is disposed of as above. K.T.SANKARAN, JUDGE csl