IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 Bail Appl..No. 10093 of 2011() ------------------------------ CC.76/2011 of C.J.M.,THODUPUZHA .................... PETITIONERS/ACCUSED -------------------------------------- 1. SURESHKUMAR @ AJI,S/O.SIVARAMAN NAIR, KANDOTHUMATTEL HOUSE,VENGALLOOR KARA, KUMARAMANGALAM,THODUPUZHA. 2. VIJAYAKUMAR,AGED 60 YEARS, S/O.RAJAPPAN NAIR,BRUSH FIELD STREET, NOTTINGHAM,POST CODE NG 75 LL,UK NOW RESIDING AT NJARALAKATTU KRISHNAKRIPA,WEST KADUNGALLUR,NEAR SASTA TEMPLE,ALUVA. BY ADV. SRI.M.R.NANDAKUMAR RESPONDENTS: COMPLAINANT -------------------------- 1. STATE OF KERALA,AREPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. 2. SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION,THODUPUZHA, IDUKKI DISTRICT 685 584. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.10093 of 2011 ---------------------------------------------- Dated this the 06th day of December, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in C.C.No.76 of 2011 on the file of the Court of the Chief Judicial Magistrate, Thodupuzha. 2. It is stated that the offences alleged against the petitioners are under Sections 447, 294(b), 423, 465 and 429 read with Section 34 of the Indian Penal Code. 3. The petitioners state that the matter really involves a civil dispute. O.S.No.196 of 2010 was filed by the de facto complainant before the Munsiff's Court, Thodupuzha against the second petitioner. That suit is pending. It is stated that a complaint was filed by the de facto complainant before the Chief Judicial Magistrate's Court, Thodupuzha, which was forwarded to the police for investigation under Section 156 (3) of the Code of Criminal Procedure and the crime was accordingly registered. After completing the investigation, Bail Appln.No.10093/2011 : 2 : charge sheet was filed and the case was taken on file as C.C.No.76 of 2011. It is submitted that the petitioners were not served with any summons in the case. 4. The learned counsel for the petitioners submitted that the second petitioner was working in London and he has to go to London within a few days. The petitioners apprehend arrest in execution of a non-bailable warrant issued by the court. Hence, they have filed this application for anticipatory bail. 5. 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 filed, the court has to dispose of the Bail Application in the light of the Bail Appln.No.10093/2011 : 3 : principles laid down in Biju v. State of Kerala (2007 (2) KLT 280). Reserving the right of the petitioners to move the Court which issued the non-bailable warrant, to recall the warrant and to grant bail, this Bail Application is closed. K.T.SANKARAN, JUDGE skj