IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 Bail Appl..No. 7416 of 2009() ----------------------------- CRIME NO.209/2009 OF MALA POLICE STATION, THRISSUR DISTRICT .................... PETITIONER/ACCUSED -------------------------------------- HARESH, AGED 41 YEARS, S/O.RAMAKRISHNAN RESIDING AT THEKKOOTT, KUZHIKKATTUSSERY P.O., THAZHEKKATTU VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.NOEL JOSEPH SRI.K.V.REJANISH RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR, MALA POLICE STATION, RP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.7416 of 2009 --------------------------------------------- Dated this the 4th day of January, 2010 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.209 of 2009 of Mala Police Station, Thrissur District. 2. The offences alleged against the petitioner are under Sections 341, 323 and 308 of the Indian Penal Code. 3. After completing the investigation, charge sheet was filed in the case on 5.8.2009. The matter is now pending before the court of the Judicial Magistrate of the First Class, Chalakudy as C.P.No.103 of 2009. It is stated by the petitioner that instead of issuing summons, the learned Magistrate has issued a non bailable warrant against the petitioner. He apprehends arrest in execution of the warrant and therefore, he has filed this application for anticipatory bail. 4. It is also submitted by the learned counsel for the petitioner that the disputes and differences between the de facto complainant and the petitioner have been settled and Annexure BA No.7416/2009 2 A1 agreement dated 26.11.2009 was executed between them. The petitioner also relies on Annexure A2 dated 28.11.2009 allegedly filed by the de facto complainant before the learned Magistrate. 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 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). 6. In Sukumari vs. State of Kerala (2001(1) KLT 22), it was held that the power under Section 437 Crl.P.C. can be exercised by the learned Magistrate even in a case where the offence is exclusively triable by a court of Session. BA No.7416/2009 3 Leaving open the right of the petitioner to move the court which issued the non bailable warrant to recall the warrant and to grant bail, this Bail Application is closed. If such an application is filed, the learned Magistrate shall consider the same in accordance with law and in the light of the decisions mentioned above. K.T.SANKARAN, JUDGE csl