IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 Bail Appl..No. 8228 of 2011() ----------------------------- AGAINST THE ORDER IN CC 199/2011 IN CC 419/2008 ON THE FILE OF THE JFCM-II, PERINTHALMANNA CRIME NO.339/2007 OF WANDOOR POLICE STATION, MALAPPURAM .................... PETITIONER(S): ACCUSED --------------------------- ABDUL KAREEM, S/O.KUNJAYAMMU, THUMBA HOUSE, AMARAMBALAM P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): STATE -------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, WANDOOR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. PUBLIC PROSECUTOR SRI.T.K.RENJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.8228 of 2011 --------------------------- Dated this the 21st day of October, 2011 O R D E R The petitioner apprehends arrest in execution of a non bailable warrant issued in C.C.No.199 of 2011 on the file of the court of the Judicial Magistrate of the First Class-II, Perinthalmanna. The case was originally taken on file as C.C.No.419 of 2008. Due to non appearance of the accused, the case was split up and it was refiled as C.C.No.199 of 2011. It is stated that the petitioner was the 3rd accused. Due to non appearance of the petitioner, non bailable warrant was issued against the petitioner. Therefore, the petitioner has filed this application for anticipatory bail. 2. In paragraphs 3 and 4 of the Bail Application, it is stated thus : “3. It is submitted that the petitioner is not the person mentioned by the first accused in the case. The name and address BA 8228/11 2 of the petitioner is as shown in the cause title. He had been running an autorickshaw for some time and on 11th September, 2007 the petitioner went to gulf in search of a job. A true copy of the air ticket showing that the petitioner travelled to Jeddah on 11.9.2007 is produced herewith and marked as Annexure A1. Since the petitioner was not in station for long time, the police took that he is under ground after committing various offences and hence he has been implicated on mistaken identity. 4. Petitioner was not aware that he is made an accused in serious offences by the police. Petitioner lost his passport in Jeddah and he was sent back by the Embassy of India through an emergency pass. He came back to India on 22.8.2011. A true copy of the emergency pass issued to the petitioner is produced herewith and marked as Annexure A2. On reaching home the police came after him and then only the petitioner came to know that he is made an accused in theft cases by the police on mistaken identity and warrants of arrest are pending against the petitioner in cases of similar nature.” BA 8228/11 3 In Vineeth Somarajan vs. State of Kerala (2009 (3) KLT 576), it was held that when warrant is issued against the accused, his remedy is to approach the court which issued the warrant for recalling the warrant and for granting bail; and not to move under Section 438 Crl.P.C. for anticipatory bail. If the petitioner surrenders before court and moves an application for bail and for recalling the warrant, the same would be considered by the court as indicated in Vineeth Somarajan vs. State of Kerala (2009(3) KLT 576). K.T.SANKARAN JUDGE csl