IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 Bail Appl..No. 7185 of 2009() ----------------------------- CRIME NO.209/1975 OF KUNNAMKULAM POLICE STATION CC NO.4/1976 OF SUB DIVL. JUDICIAL MAGISTRATE COURT, KUNNAMKULAM RENUMBERED AS C.C.NO.682/1976 OF SAID COURT L.P.NO.116/2001 OF THE SAME COURT .................... PETITIONER/ACCUSED NO.3 ------------------------------------------- CHANDANATH MOHAMADALI, S/O.ABDULLA, AGED 61 YEARS, PERUMPADAPPU AMSOM DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.N.HARIDAS SRI.P.N.SASIDHARAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KUNNAMKULAM, THRISSUR DISTRICT, NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.7185 of 2009 --------------------------------------------- Dated this the 27th day of January, 2010 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.3 in Crime No.209 of 1975 of Kunnamkulam Police Station. 2. The offences alleged against the petitioner are under Sections 201, 202, 342 and 143 read with Section 149 of the Indian Penal Code. 3. It is stated that during the crime stage, the petitioner was released on bail. Later, he went abroad in search of a job. The case was tried against the other accused persons in C.C.No.4 of 1976 on the file of the court of the Sub Divisional Judicial Magistrate, Kunnamkulam. They were acquitted as per the judgment dated 24th December, 1976. The case against the petitioner was split up and it was treated as long pending case. Non bailable warrant was issued against the petitioner. The petitioner apprehends arrest in execution of the non bailable BA No.7185/2009 2 warrant and therefore, he has filed this application for anticipatory bail. 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 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 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). In the peculiar facts and circumstances of the case, the Bail Application is disposed of as follows: The petitioner, Chandanath Mohammadali, shall appear before the court of the Judicial Magistrate of the First Class, Kunnamkulam within a period of ten days from today and apply for recalling the warrant and for the grant of bail. On such an BA No.7185/2009 3 application being filed, the learned Magistrate shall recall the non bailable warrant and release the petitioner on bail on the same date, on such conditions as may be deemed fit and proper. K.T.SANKARAN, JUDGE csl