IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Bail Appl..No. 6445 of 2009() ----------------------------- CC.15/2008 of JMFC-V, TVM (SPL.COURT-MARKLIST CASES) CRIME NO.209/2003 OF VANCHIYOOR POLICE STATION .................... PETITIONERS : ACCUSED 1 TO 3 ------------------------------- 1. STEPHEN.F.ROZARIO ,ADVOCATE T.C.78/1313, KOCHUTHOPPU,SHANGUMUGHAM PETTAH 2. JUSTIN F.ROZARIO,S/O.FRANCIS ROZARIO KOCHUTHOPPU,SHANGUMUGHAM,PETTAH 3. GEORGE FERNANDEZ, S/O.JOSEPH FERNANDES T.C. 343/1613, KOCHUTHOPPU,SHANGUMUGHAM,PETTAH . BY ADV. SRI.C.K.MOHANAN RESPONDENT(S): --------------- S.I.OF POLICE, VANCHIYOOR POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6445 OF 2009 ------------------------------------------------------ Dated this the 30th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are accused Nos.1 to 3 in C.C.No.15 of 2008, on the file of the Court of the Judicial Magistrate of the First Class – V, Thiruvananthapuram. They apprehend arrest in execution of the non-bailable warrant issued by the Court. 2. It is submitted that the first petitioner is an advocate by profession and that his office is situated very near to the police station. He states that he has not received any summons in the case. However, non-bailable warrant was issued. It is submitted that petitioners 2 and 3 were also not served with summons. 3. 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 B.A. NO. 6445 OF 2009 :: 2 :: 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 with the 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). Reserving the right of the petitioners to apply for regular bail, this Bail Application is disposed of. (K.T.SANKARAN) Judge ahz/