IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 Bail Appl..No. 6786 of 2009() ------------------------------------ C.C.710/2003 of J.M.F.C.-V, KOZHIKODE .................... PETITIONERS/ACCUSED: ------------------------------------ 1. T.P. ALAVIKUTTY HAJI, S/O. YAHU HAJI, AGED 60 RESIDING AT KACHAPARAMBAN, VALIYORA P.O., VENGARA, MALAPPURAM DISTRICT. 2. ABDUL KHADER HAJI, S/O. MOHAMMED MOULAVI, AGED 66 KUTTALOOR CHALIL, VENGARA, MALAPPURAM DISTRICT. BY ADV. SRI.K.T.SHYAMKUMAR RESPONDENT: -------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. M.S.BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 6786 of 2009 ------------------------------------ Dated this the 24th 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 petitioners are the accused persons in C.C. No. 710/2003 on the file of the Court of the Judicial Magistrate of the First Class-V, Kozhikode. 2. The offences alleged against the petitioners are under Sections 406, 417 and 420 read with Section 34 of the Indian Penal Code. 3. The petitioners apprehends arrest in execution of the non bailable warrant issued by the court. 4. The learned counsel for the petitioners submitted that the petitioners were regularly appearing before Court. However, on the date of which the case was posted for trial, they could not appear. The counsel filed an application to condone the absence of the petitioner. The court below dismissed that application and non bailable warrant was issued. 5. It is submitted that the first petitioner is suffering from Alzheimer's disease. It is also stated that the second petitioner's daughter committed suicide. These are the circumstances pointed out by which, according to the petitioners, they were prevented B.A. No. 6786 of 2009 2 them from appearing before court on the date on which the case was posted for trial. The petitioners prayed for grant of Anticipatory Bail. 6. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009 (3) KHC 471] it was held that in cases where non bailable warrant is issued by a court, the proper remedy of the accused is to approach that court which issued the warrant and to apply for recalling the warrant and for the grant of bail. It was also observed in Vineeth Somarajan's case that when such an application for bail is filed, the same has to be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007(2) K.L.T. 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. Needless to say that when an application is filed, the court shall take note of the circumstances in which the petitioners allege that they could not appear on the date fixed for trial of the case. The Bail Application is closed. K.T. SANKARAN, JUDGE ln