IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 Bail Appl..No. 10360 of 2011 CC.107/2010 of C.J.M.,KASARAGOD PETITIONER: ACCUSED: -------------------- MOHAMMED SIDDIQUE M.N S/O.ABBAS, AGED 31 YEARS, BHASKERA NAGAR KOIPADY VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.R.UDAYA KUMAR SRI.JACOB E SIMON RESPONDENT: COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. C.C.107/2010 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD. STATE PROSECUTOR SRI.T.ASAF ALI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 10360 OF 2011 ------------------------------------------------------ Dated this the 21st day of December, 2011 O R D E R The petitioner apprehends arrest in execution of the non- bailable warrant issued in C.C.No.107 of 2010, on the file of the Court of the Chief Judicial Magistrate, Kasaragod. 2. It is stated in the Bail Application thus: “It is submitted that the petitioner has not committed any offence as alleged. The petitioner was arrested and released on bail. Thereafter the petitioner was present before the Honourable Chief Judicial Magistrate Court, Kasaragod on 30/03/2010, which is the first posting day of C.C.No.107/2010. Thereafter the petitioner was appeared before the Court on all the posting days (01/07/2010, 27/09/2010, 04/01/2011, 01/06/2011) either he himself or through his counsel till 18/07/2011. 4. Thereafter the case was adjourned to 22/08/2011 for evidence. Even though the case was posted to 22/08/2011, the Clark attached to the office of the counsel for the petitioner mistakenly entered in the BAIL APPL. NO.10360 OF 2011 :: 2 :: posting of the case in diary as 22/10/2011 instead of 22/08/2011. 5. Due to the above mentioned reason, the accused or his counsel was not present before the Honourable Chief Judicial Magistrate Court, Kasaragod on 22/08/2011, when the case was called. Hence the court was pleased to issue Non Bailable Warrant against the accused. The case now stands posted to 21/12/2011.” 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). BAIL APPL. NO.10360 OF 2011 :: 3 :: 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 shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/