IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 Bail Appl..No. 5864 of 2009 CRIME NO.368 OF 2008 OF CHENTHERA POLICE STATION PETITIONER - ACCUSED ---------------------------------------- ABDUL RAHIMAN, S/O.ABDULLA, KARIYIL, CHERUVATHUR VILLAGE, P.O.THURUTHI, KASARAGOD DISTRICT. BY ADV. SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5864 OF 2009 ------------------------------------------------------ Dated this the 14th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.368 of 2008 of Chanthera Police Station. 2. The offences alleged against the petitioner are under Sections 366 and 376 of the Indian Penal Code. 3. Learned Public Prosecutor submitted that after the investigation, charge was laid in the case and it is pending as C.P.No.86 of 2009, on the file of the Court of the Judicial Magistrate of the First Class I, Hosdurg. Non-bailable warrant was issued against the petitioner by the learned Magistrate. Petitioner apprehends arrest and detention. 4. In Vineeth Somarajan 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, the remedy of the accused is to file an application for withdrawal of the warrant and B.A. NO. 5864 OF 2009 :: 2 :: for the grant of bail. 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 taking into account the principles laid down in Biju v. State of Kerala (2007(2) KLT 280). 5. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. 6. In the light of the aforesaid decisions, I am of the view that the remedy of the petitioner is to apply for withdrawal of the warrant and for the grant of bail. If the petitioner appears before the Judicial Magistrate of the First Class I, Hosdurg within a period of ten days from today and applies for bail, the learned Magistrate shall dispose of the same in accordance with the principles laid down in the aforesaid decisions. The Bail application is disposed of as above. (K.T.SANKARAN) Judge ahz/