IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 Bail Appl..No. 10129 of 2011 CC.637/2005 of J.M.F.C.-I, KANNUR PETITIONER/ACCUSED -------------------------------------- ABDUL KHADER @ ABDUL RAHMAN, S/O.UNNIMOIDEEN,PUTHUR HOUSE,KODINJI.P.O, MALAPPURAM DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: COMPLAINANT ------------------------ 1. RAMESHAN,S/O.KUNHIRAMAN,AGED 40 YEARS, CHOOLIYAD,MALAPPURAM-676505. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 10129 OF 2011 ------------------------------------------------------ Dated this the 20th day of December, 2011 O R D E R It is stated in paragraph 1 of the Bail Application thus: “The petitioner is the sole accused in CC 637/2005 of Judicial 1st Class Magistrate I, Kannur. He was the 3rd accused in CC 509/04, a private complaint filed against three accused persons alleging offence punishable u/s 420 and 468 of IPC. Accused 1 and 2 faced the enquiry in the case. During the course of the enquiry conducted by the Learned Magistrate those accused 1 and 2 were discharged. The case of the Petitioner is split up and re filed as CC 637/2005, Petitioner had filed a Crl.M.C.3231/2011 for quashing the case against him in the light of discharge of other accused persons. That was disposed off by this Hon'ble Court directing the Petitioner to appear before the court and to participate in the pre-charge enquiry under u/s 344 of the Code.” 2. The learned counsel for the petitioner submitted that the case is pending on the file of the Court of the Judicial Magistrate of BAIL APPL. NO.10129 OF 2011 :: 2 :: the First Class II, Kannur and it was mistakenly shown in the Bail Application as the Court of the Judicial Magistrate of the First Class I, Kannur. 3. A non-bailable warrant was issued by the Court in C.C.No.637 of 2005. The petitioner apprehends arrest in execution of the non-bailable warrant issued against him. 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). In the facts and circumstances of the case, the Bail Application BAIL APPL. NO.10129 OF 2011 :: 3 :: 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 shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/