IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 Bail Appl..No. 9899 of 2011 C.P.NO.78 OF 2011 ON THE FILE OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS I, HARIPAD. CRIME NO.146 OF 2010 OF KAREELAKULANGARA POLICE STATION. PETITIONER/2ND ACCUSED ------------------------------------------ SOMARAJAN,S/O.SUKUMARAN, MANNANTHUNDIL HOUSE, VERUVALLY BHAGOM MURI, KEERIKADU VILLAGE, ALAPPUZHA 690 502. BY ADV. SRI.T.S.HARIKUMAR RESPONDENTS: STATE AND INVESTIGATING OFFICER ---------------------------------------------- 1. THE STATE OF KERALA,REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. THE DEPUTY SUPERINTENDENT OF POLICE, KAYAMKULAM,ALAPPUZHA. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 9899 OF 2011 ------------------------------------------------------ Dated this the 13th day of December, 2011 O R D E R The petitioner apprehends arrest in execution of the non- bailable warrant issued in C.P.No.78 of 2011 on the file of the Court of the Judicial Magistrate of the First Class I, Haripad. It is stated that the petitioner came to know about the case only when the warrant was sought to be executed. It is stated in paragraphs 3 to 7 of the Bail Application thus: “3. The allegation against the accused persons are that on 02.02.2010 at 3.30 P.M. the accused persons encroached upon the property of the defacto complainant, who is a member of scheduled caste community, and causing hurt to him and abused by calling the cast name and thus committed the offence. 4. The private complaint was only on 9.3.2010 and though this accused is known to the defacto complainant as a neighbour, the petitioner was not arrayed in the private complaint. But the police after the BAIL APPL. NO.9899 OF 2011 :: 2 :: investigation made this petitioner as the 2nd accused and submitted the final report. 5. There were two civil cases pending between the defacto complainant and the 1st accused and this petitioner is not at all involved with those disputes. 6. The petitioner is employed out of State and now it appears that the petitioner is arrayed in the party array as the 2nd accused on mistaken identity. 7. The petitioner came to know about the case pending against him only when the police came to execute a warrant issued by the Judicial First Class Magistrate Court-I, Haripad in C.P.No.110 of 2010. The petitioner as he was out of State in connection with his employment he made enquiries through an Advocate, it come to his knowledge that the 1st accused was released on bail at the investigating stage and the charge against him was committed to the Sessions Court. Further the committal proceedings against the petitioner was renumbered as C.P.No.78 of 2011 and non bailable warrant was issued against him and ordered to initiate steps under Sections 82 and 83 of the Code of Criminal Procedure.” 2. In Vineeth Somarajan @ Ambady v. State of Kerala (2009 BAIL APPL. NO.9899 OF 2011 :: 3 :: (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). 3. In Sukumari v. State of Kerala (2001 (1) KLT 22), it was held that Section 437 of the Code of Criminal Procedure does not create an absolute bar on the Magistrate to the grant of bail to persons accused of a non-bailable offence or in respect of offences exclusively triable by a Court of Sessions. 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 BAIL APPL. NO.9899 OF 2011 :: 4 :: 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/