IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 Bail Appl..No. 9096 of 2011() ----------------------------- CRIME NO.858/2010 OF KODUNGALLUR POLICE STATION PETITIONERS (S): ACCUSED -------------------------------- 1. RAMESAN,AGED 39 YEARS, S/O.VELAYUDHAN EDAMUTTATH VEETTIL, ERIYAD VILLAGE, DESOM. 2. SABAH, AGED 24 YEARS, S/O.ABDUL MAJEED VELLAKKAM PADY VEETTIL,PAY BAZAR DESOM AZHIKODE VILLAGE. 3. ABDU, AGED 62 YEARS, S/O.MUHAMMED KARIEZHATH VEETTIL, ERIYAD VILLAGE, DESOM. 4. NAZAR,AGED 36 YEARS, S/O.ABRAHIM PUTHIYAVEETTIL, ERIYAD VILLAGE,DESOM. 5. SAJEEV, AGED 39 YEARS, S/O.AMMU KUNJU, THATTAMPARAMBIL VEETTIL, ERIYAD VILLAGE, DESOM. BY ADV. SRI.K.I.SAGEER RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE KODUNGALLUR POLICE STATION, THRISSUR. PUBLIC PROSECUTOR SRI.T.K.RENJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.9096 of 2011 --------------------------- Dated this the 3rd day of November, 2011 O R D E R The petitioners are the accused in C.C.No.514 of 2010 on the file of the court of the Judicial Magistrate of the First Class, Kodungallur. It is stated that the offences alleged against them are under Sections 143, 147, 341 and 323 read with Section 149 of the Indian Penal code. All these offences are bailable offences. Bail was granted to the accused. It is stated that due to the non appearance of the accused, non bailable warrant was issued by the court. The petitioners apprehend arrest in execution of the non bailable warrant and therefore, they have filed this application for anticipatory bail. 2. It is stated in paragraph 2 of the Bail Application thus : “2. The case was referred to Adalath on 17.6.2011 for settlement. On that day all accused and CW1 were also present. Matter almost settled and posted to 24.6.2011. All BA 9096/11 2 accused and CW1 were absent. Hence the file returned to the court. On 28.6.2011 the case called in the open court. All the accused and CW1 were absent. The counsel for the accused/petitioners represented. But the learned Magistrate was pleased to cancel the bail bond of the accused/petitioners and issued non bailable warrant against them.” 3. 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, 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. The petitioners shall file appropriate applications before the learned Magistrate to recall the warrant and to grant bail. On such application being filed, the learned Magistrate shall consider the application on the same day on which it is filed, and shall pass appropriate orders, taking into account the fact that the offences BA 9096/11 3 are bailable offences and the matter was once referred to the Adalath. K.T.SANKARAN JUDGE csl