IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 Bail Appl..No. 6342 of 2009() ------------------------------------ ST.4060/1997 of J.M.F.C., KODUNGALLUR CRIME NO. 224/1995 OF KODUNGALLUR POLICE STATION .................... PETITIONER/7TH ACCUSED; -------------------------------------- SAGEER, AGED 38 YEARS, S/O.KOCHUNNY, MUKRIYAKATH, AZHEEKODE P.O. KODUNGALLUR. BY ADV. SRI.K.A.JALEEL RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA (REPRESENTED BY SUB INSPECTOR OF POLICE, KODUNGALLUR-CR.NO.224/95 OF KODUNGALLUR POLICE STATION) REPRESENTED BY STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. M.S.BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 6342 of 2009 ------------------------------------ Dated this the 4th day of November, 2009 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. 7 in Crime No.224/1995 of Kodungallur Police Station. The case against the petitioner is now pending as L.P. No. 98/99 on the file of the Court of the Judicial Magistrate of the First Class, Kodungallur. 2. The offences alleged against the petitioner are under Sections 143, 147, 448, 323, 427 and 354 read with Section 149 of the Indian Penal Code. 3. After completing the investigation, charge was laid in the case. It is submitted that after the trial, the other accused persons were acquitted. The petitioner was absconding. The case against him was split up. Now it is pending as L.P. No. 98/99. It would appear that non bailable warrant was issued by the learned Magistrate. The petitioner apprehends arrest. Therefore, he has moved this application for Anticipatory Bail. B.A. No. 6342 of 2009 2 In Vineeth Somarajan @ Ambadi Vs. State of Kerala 2009 (3) KHC 471, it was held that where a non bailable warrant is issued by a court, the remedy of the accused is to apply before that court for recalling the warrant and for the grant of bail. It was also held that normally in such cases, the jurisdiction under Section 438 of the Code of Criminal Procedure would not be invoked. It was also held in Vineeth Somarajan's case that when an application is filed for bail before the court which issued the warrant, the bail application shall be disposed of in the light of the principle laid down in Biju Vs. State of Kerala 2007(2) KLT 280. Reserving the right of the petitioner to apply before the court which issued the warrant to recall the warrant and to grant bail, this Bail Application is closed. K.T. SANKARAN, JUDGE ln