IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 Bail Appl..No. 8816 of 2011 C.C.NO.418 OF 2010 OF JFCM, ERATTUPETTA PETITIONER/ACCUSED -------------------------------------- USHAKUMARI.K.N,KUZHIPARAMBIL, TEEKOY PO, KOTTAYAM DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, REPRESENTING THE SUB INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION, ALAPPUZHA DISTRICT. PUBLIC PROSECUTOR SRI.R.RANJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 8816 OF 2011 ------------------------------------------------------ Dated this the 23rd day of November, 2011 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 C.C. No.418 of 2010 on the file of the court of the Judicial Magistrate of the First Class, Erattupetta. The offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act. The petitioner apprehends arrest in execution of a non-bailable warrant issued by the Court and therefore, she has filed this application for anticipatory bail. 2. It is stated in the Bail Application that the petitioner was residing at Thirunelvely in Tamilnadu for the last one year and, therefore, she did not receive any summons. 3. 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 BAIL APPL. NO. 8816 OF 2011 :: 2 :: 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 closed 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 on the very same date on which the application is filed, in the light of the principles laid down in Vineeth Somarajan's case, taking into account the facts and circumstances of the case and also the fact that the offence is under Section 138 of the Negotiable Instruments Act. (K.T.SANKARAN) Judge ahz/