IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Bail Appl..No. 8838 of 2011() ----------------------------- CC.75/2006 of J.M.F.C.-III,TRIVANDRUM CRIME NO.331 OF 2003 OF KAZHAKOOTAM P.S, THIRUVANANTHAPURAM DT. .................... PETITIONER/ACCUSED -------------------------------------- 1. BIJU KUMAR, "CHERUKONATHU VEEDU", VIKAS NAGAR, PANGAPPARA, SREEKARIYAM, THIRUVANANTHAPURAM(A1). 2. PRAVEEN, "CHINNU BHAVAN", VIKAS NAGAR, PANGAPPARA, SREEKARIYAM, THIRUVANANTHAPURAM(A3). 3. RAJESH, "RAJESH BHAVAN", VIKAS NAGAR, PANGAPPARA, SREEKARIYAM, THIRUVANANTHAPURAM(A4). 4. RATHEESH, "RAJESH BHAVAN", VIKAS NAGAR, PANGAPPARA, SREEKARIYAM, THIRUVANANTHAPURAM(A5). 5. KISHORE KUMAR, "VISHALA BHAVAN", VIKAS NAGAR, PANGAPPARA, SREEKARIYAM, THIRUVANANTHAPURAM(A6). 6. PRASANNA KUMAR @ UNNI, VIKAS NAGAR, PANGAPPARA, SREEKARIYAM, THIRUVANANTHAPURAM(A7). 7. BIJU, MANU BHAVAN, VIKAS NAGAR, PANGAPPARA, SREEKARIYAM, THIRUVANANTHAPURAM(A9). 8. DEEPU, "MOOZHIYIL VEEDU", CHEMPAZHANTHY SREEKARIYAM, THIRUVANANTHAPURAM(A10). 9. DEEPU, S/O.PAPPAN, VIKAS NAGAR, BANGLADESH COLONY, PANGAPPARA, SREEKARIYAM, THIRUVANANTHAPURAM(A11). Bail Appl..No. 8838 of 2011() 10. MARTIN, "CHENGONATHU VEEDU", VIKAS NAGAR, PANGAPPARA, SREEKARIYAM, THIRUVANANTHAPURAM(A12). BY ADV. SRI.SUMAN CHAKRAVARTHY SRI.SANDEEP T.GEORGE RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SRI.T.K.RENJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------- B.A.No.8838 OF 2011 --------------------------------- Dated this the 24th day of October, 2011 ORDER The petitioners are the accused in C.C.No. 75 of 2006 on the file of the Court of the Judicial Magistrate of the First Class-III, Thiruvananthapuram. They apprehend arrest in execution of the non bailable warrant issued by the court. Hence, they have approached this court by way of this Bail Application under Section 438 of the Code of Criminal Procedure. 2. The learned counsel for the petitioners submitted that from 2006 to 2011, the petitioners were regularly appearing the court. The counsel stated that all the petitioners are employed in various offices. It is also stated in paragraph 4 and 5 of the Bail Application thus: B.A.No. 8838 OF 2011 2 “4. It is submitted that on 11.1.11 the accused were present and the Hon'ble Court ordered summons to CW1 to 3 and posted the case for trial on 25.3.11. On 25.3.11 the CW's 1 to 3 were present and since all of the accused were not present, further time was sought and the case was adjourned to 28.6.11. On 28.6.11 since the 8th accused had died, the accused were not able to attend the court and the case was adjourned to 2.9.11 with Rs.200/- as cost to CW's 1 to 3. 5. Since the date noted by the accused was 12.9.11 they did not appear on 2.9.11. However, the advocate filed an application was rejected and Non Bailable Warrant was issued.” 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 court 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. 8838 OF 2011 3 Reserving the right of the petitioners 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. cms