IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 Bail Appl..No. 10472 of 2011() ------------------------------ CRMP.3601/2011 of DISTRICT COURT, PALAKKAD CC.562/2008 of J.M.F.C.,CHITTUR CRIME NO.353 OF 2008 OF KOZHINJAMPARA POLICE STATION, PALAKKAD DT. .................... PETITIONERS/ACCUSED --------------------------------------- 1. ARUMUGHAN,S/O.RANGASWAMI,AGED 33 YEARS, NETHAJI NAGAR,ERUTHEMPATHY,CHITTUR TALUK, PALAKKAD DISTRICT. 2. SELVAMUTHU KUMARASWAMI,W/O.SUBBAYYA KOUNDER,AGED 38 YEARS,METHAKKALAM, ERUTHEMPATHY,CHITTUR TALUK,PALAKKAD. 3. NATARAJAN,S/O.PAZHANISWAMY KOUNDER, AGED 55 YEARS,METHAKKALAM, ERUTHEMPATHY,CHITTUR TALUK,PALAKKAD. 4. SUBRAMANIAN,S/O.KARUPPASWAMY KOUNDER, AGED 55 YEARS,METHAKKALAM, ERUTHEMPATHY,CHITTUR TALUK,PALAKKAD. 5. SAKSTHIVEL,S/O.SUBRAMANIAN, AGED 36 YEARS,METHAKKALAM, ERUTHEMPATHY,CHITTUR TALUK,PALAKKAD. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA,REP.BY S.I. OF POLICE, KOZHINJAMPARA POLICE STATION,PALAKKAD,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SRI.R.RANJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------- B.A.No.10472 OF 2011 --------------------------------- Dated this the 14th day of December , 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners apprehend arrest in execution of the non bailable warrant issued in C.C.No.562 of 2008 on the file of the Court of the Judicial Magistrate of the First Class, Chittur. It is stated that the case was posted for trial on 29.8.2011 and the petitioners were present on that day. However, the case was adjourned to 29.9.2011. On that day, the petitioners could not appear before the court , since one of their neighbours was critically ill and they had to attend to him. The petitioners also could not contact their counsel in order to file an application to excuse their absence. The trial court issued non bailable warrant, since the petitioners were absent on 29.9.2011. Though the petitioners moved the learned Sessions Court for anticipatory bail, that application was dismissed by the order dated 7th B.A.No. 10472 OF 2011 2 December, 2011. 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 court 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 petitioner to move the Court which issued the non-bailable warrant, to recall the warrant and to grant bail, this Bail Application is closed. K.T.SANKARAN, JUDGE. cms