IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 Bail Appl..No. 8129 of 2011 S.T.NO.512 OF 2009 ON THE FILE OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS II, PERAMBRA, KOZHIKODE DISTRICT. PETITIONER: ACCUSED: -------------------- SASIDHARAN MAVIDI, S/O.NARAYANAN NAIR, AGED 52 YEARS, MAVADIYIL HOUSE, KUNNATHARA POST, KOYILANDY VIA, ULLIYERI AMSOM, KUNNATHARA DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENTS: STATE & COMPLAINANT: --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. E.C.ASOKAN, S/O.KUNHIRAMAN NAMBIAR, AGED 49 YEARS, ERAMPATTACHALIL HOUSE, KAYANNA BAZAR, KOZHIKODE - 673 573. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 8129 OF 2011 ------------------------------------------------------ Dated this the 30th day of September, 2011 O R D E R The petitioner apprehends arrest in execution of a non- bailable warrant issued by the Court of the Judicial Magistrate of the First Class II, Perambra in S.T.No.512 of 2009. The offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act. It is stated that the evidence of the complainant was over and the case was posted for questioning under Section 313 of the Code of Criminal Procedure, on 2.12.2010. The petitioner was absent on that day and non-bailable warrant was issued against him. Thereafter, steps were taken under Sections 82 and 83 of the Code of Criminal Procedure. It is stated that the case is now posted to 27.10.2011. The petitioner apprehends arrest in execution of the non-bailable warrant issued against him. It is submitted that if the petitioner appears before Court, he would be remanded to judicial custody. In these circumstances, the petitioner has filed this application for anticipatory bail. BAIL APPL.NO.8129 OF 2011 :: 2 :: 2. 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 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). In the facts and circumstances of the case, the Bail Application is disposed of with liberty to the petitioner to approach the Court which issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioner, the learned Magistrate shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/