IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 Bail Appl..No. 8734 of 2011 CC.33/2008 OF CHIEF JUDICIAL MAGISTRATE, ERNAKULAM PETITIONERS/ACCUSED NO.2 -------------------------------------------- MANEESH MOHAN, AGED 30 YEARS, KUTTIYAL HOUSE, CHERUKULANJI.P.O., VALIYA KULAM, RANNI, PATHANAMTHITTA DISTRICT. BY ADV. SMT.K.M.NAZREEN RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.T.K.RANJITH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 8734 OF 2011 ------------------------------------------------------ Dated this the 20th day of October, 2011 O R D E R The petitioner apprehends arrest in execution of the non- bailable warrant issued in C.C.No.33 of 2008, on the file of the Court of the Chief Judicial Magistrate, Ernakulam. It is submitted that the offence alleged against the petitioner is under Section 420 of the Indian Penal Code. 2. It is submitted in paragraph 3 of the Bail Application thus: “3. Containing allegations of the above said nature a Final Report had been filed crime No.1594 of 2007 by the Investigating Officer attached to the Central Police Station. the petitioner had appeared before the Court below on receipt of summons and was enlarged on bail. Thereafter the accused continued to appear on most of the posting dates. But when the case was posted on 16.12.2008 for the purpose of framing of charge he could not appear due to the fact that he was employed in Pune at that time. And the learned Chief Judicial Magistrate BAIL APPL.NO. 8734 OF 2011 :: 2 :: was pleased to issue non bailable warrant against the accused. Later, on 14.1.2009 the accused had appeared and the warrant issued had been recalled.” 3. 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). In the facts and circumstances of the case, the Bail Application is closed with liberty to the petitioner to approach the Court which issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioner, the learned Magistrate BAIL APPL.NO. 8734 OF 2011 :: 3 :: shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/