IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 Bail Appl..No. 10217 of 2011 LPR.102/2010 of J.M.F.C.-III,THRISSUR (C.C.NO.167 OF 2009) PETITIONER/ACCUSED -------------------------------------- DHANYAKUMAR,AGED 28 YEARS,S/O.MUKUNDAN, KAIPPILLY HOUSE,MUTTITHADI.P.O,KALLUR. BY ADV. SRI.C.HARIKUMAR SMT.V.V.ASHA RESPONDENT: STATE -------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN-682031. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 10217 OF 2011 ------------------------------------------------------ Dated this the 12th day of December, 2011 O R D E R The petitioner apprehends arrest in execution of the non- bailable warrant issued by the Court of the Judicial Magistrate of the First Class III, Thrissur in C.C.No.167 of 2009, which is now pending as L.P.R.No.102 of 2010. Hence, the petitioner has filed this application for anticipatory bail. It is stated that the offences alleged against the petitioner are under Sections 279 and 304A of the Indian Penal Code. 2. It is stated in the Bail Application thus: “ The petitioner was on bail in the crime stage. Later, when the case was posted for trial the petitioner could not participate in the same as he was out of station in connection with his employment. The case against the petitioner was renmbered as C.C.No.167/2009 and now the case is included in the long pending register and numbered as LPR No.102/2010 in the file of JFCM-III, Thrissur. The learned Magistrate has issued non bailable warrant against the petitioner in pursuance of the coercive process initiated against the petitioner. BAIL APPL. NO.10217 OF 2011 :: 2 :: 4. The petitioner is absolutely innocent of the offences alleged against him. The petitioner could not participate in the trial only because he was not in station. The petitioner is presently back and is prepared to appear before the Learned Magistrate but apprehends that since warrant is pending he would be remanded to judicial custody. In the circumstances mentioned above the petitioner submits that his pre-trial detention may not be necessary. The petitioner submits that he is the only bread winner of his family and in case he is arrested and remanded to judicial custody irreparable injury and hardship will be caused to 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 BAIL APPL. NO.10217 OF 2011 :: 3 :: 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 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/