IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 Bail Appl..No. 8702 of 2011() ----------------------------- CC.1042/2007 of J.M.F.C.-II, ALUVA CRIME NO.330/2003 OF ANGAMALY POLICE STATION .................... PETITIONER-ACCUSED : ---------------------- RAJESH, S/O.VIJAYAN, AGED 37, MOOLANKUDY HOUSE, KURUMASSERY, PARAKKADAVU VILLAGE, ERNAKULAM (DIST). BY ADV. SRI.ANIL K.MOHAMMED RESPONDENT: COMPLAINANT -------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, COURT OF SESSIONS, ERNAKULAM. PUBLIC PROSECUTOR SRI.R.RANJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.8702 of 2011 ---------------------------------------------- Dated this the 11th day of November, 2011 ORDER The petitioner apprehends arrest in execution of the non- bailable warrant issued in C.C.No.1042 of 2007 on the file of the court of the Judicial Magistrate of the First Class-II, Aluva. The case arose out of Crime No.330 of 2003 of Angamaly Police Station for the offences under Sections 27(1) and 37 of the Arms Act. 2. It is stated in paragraph Nos.3 to 5 of the Bail Application thus:- “3. It is submitted that after questioning the witness and completing the investigation, final report was filed before Judicial First Class Magistrate Court-II, Aluva where it was taken on file as C.C.No.815 of 2003. The petitioner along with other accused appeared before the court pursuant to the summons received by them and was enlarged on bail. Thereafter petitioner pleaded not guilty to the charges framed against him. In the trial, on the side Bail Appln.No.8702/2011 : 2 : of prosecution four witnesses were examined as Pws.1 to 4. Thereafter when the case was posted for questioning the accused under Section 313 of the Code of Criminal Procedure, petitioner could not appear before court since he was employed at Bombay during that period and he could not get leave. Hence the case against petitioner was split up and the case against accused No.2 & 3 was proceeded with. In that trial accused No.3 was acquitted by the trial court and accused No.2 was acquitted by the appellate court. 4. It is submitted that subsequently case against petitioner was refiled as C.C.No.1042 of 2007. The petitioner thereafter voluntarily appeared before the trial court and he was enlarged on bail. Subsequently when the case was posted on 04/03/2011 the petitioner was not present before the court and there was any representation since the date was mistakenly noted by the clerk of the counsel. Hence non bailable warrant was issued against the petitioner. Bail Appln.No.8702/2011 : 3 : 5. It is submitted that the non appearance of the petitioner on the posting date was not deliberate. It was solely due to the reason that the date was mistakenly noted by the clerk of the counsel. Since non bailable warrant is pending against the petitioner, police is trying to arrest him.” 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 Appln.No.8702/2011 : 4 : 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 skj