IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 Bail Appl..No. 1837 of 2010() ----------------------------- CRIME NO.154/2002 OF ERNAKULAM TOWN SOUTH POLICE STATION LP.7/2009 of ADDL.C.J.M., ERNAKULAM .................... PETITIONER/ACCUSED NO.2 ------------------------------------------- BIJU @ VIJU AGED 32 YEARS, S/O MADHAVAN, KAVALAMPILLI PADIKKAL HOUSE, JANATHA ROAD, VYTTILA, ERNAKULAM. BY ADV. SRI.PRADEESH CHACKO RESPONDENT(S): COMPLAINANTS --------------------------- 1. CIRCLE-INSPECTOR OF POLICE, E.T.SOUTH POLICE STATION, ERNAKULAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.1837 of 2010 --------------------------------------------- Dated this the 31st day of March, 2010 O R D E R The petitioner states that he is accused No.2 in L.P.No.7 of 2009 on the file of the court of the Additional Chief Judicial Magistrate, Ernakulam. 2. The crime was registered as Crime No.154 of 2002 of Ernakulam Town South Police Station. It is stated that the petitioner was accused No.4 in the crime. During the crime stage, the petitioner was released on bail. Later, he did not appear before court during the committal stage. The case against the petitioner was split up and it was numbered as L.P.No.7 of 2009 on the file of the court of the Additional Chief Judicial Magistrate, Ernakulam. It is stated that the case against four accused persons were committed to the Sessions Court and in Sessions Case No.106 of 2007, they were tried and acquitted by the Additional Sessions Judge (Adhoc-II), Ernakulam. 3. In L.P.No.7 of 2009, non bailable warrant was issued against the petitioner. The petitioner apprehends arrest in execution of the non bailable warrant. Therefore, he has BA No.1837/ 2010 2 approached this court for anticipatory bail under Section 438 of the Code of Criminal Procedure. 4. In Vineeth Somarajan @ Ambady vs. State of Kerala (2009(3) KHC 471), it was held that in cases where non bailable warrant is issued by the court, 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 invoking 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 vs. State of Kerala (2007(2) KLT 280). 5. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the Magistrate has jurisdiction to grant bail even in respect of an offence exclusively triable by a court of Session. Reserving the right of the petitioner 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 csl