IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 Bail Appl..No. 1849 of 2010() ----------------------------- CRIME NO.104/2010 OF PUDUKKAD POLICE STATION .................... APPLICANT/IST ACCUSED ----------------------------------------- RAMESH, S/O.RADHAKRISHNAN, PARAMEL HOUSE, NANDIKARA, THRISSUR. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, PUDUKKAD POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.1849 of 2010 --------------------------------------------- Dated this the 24th day of March, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.1 in Crime No.104 of 2010 of Pudukkad Police Station. 2. The offence alleged against the petitioner is under Section 498A read with Section 34 of the Indian Penal Code. 3. It is stated that the petitioner moved an application for anticipatory bail before the Sessions Court, Thrissur. Pending that Bail Application, final report was filed before the Magistrate's court stating that the petitioner is absconding. The learned Sessions Judge dismissed the application for anticipatory bail holding thus : “In these circumstances, the petitioner can surrender before the court below and seek regular bail. In the event of filing an application seeking bail with sufficient notice to the Prosecutor in charge of the case, the court below shall consider the application and pass BA No.1849/2010 2 appropriate orders on the date of surrender itself.” 4. It is submitted that the petitioner is an engine driver in Central Railways. He was attending to his duties. He had never absconded. Therefore, the investigating officer was not justified in filing a charge sheet stating that the petitioner was absconding. The apprehension of the petitioner is that if the petitioner surrenders before the Magistrate's court, he would be remanded to judicial custody. I do not think that the apprehension of the petitioner is well founded. The learned Sessions Judge has directed the learned Magistrate to dispose of the Bail Application on the same date on which it is filed. 5. 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 BA No.1849/2010 3 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). 6. In the facts and circumstances of the case, no further directions are necessary. The interests of the petitioner have been safeguarded by the order passed by the learned Sessions Judge. In these circumstances, the Bail Application is dismissed with the above observations. K.T.SANKARAN, JUDGE csl