IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 Bail Appl..No. 817 of 2010() -------------------------------- CP.99/2009 of J.M.F.C.-I,HOSDRUG .................... PETITIONER/ACCUSED NOS. 3 & 4 : ---------------------------------------- 1. MUNEER C.H, AGED 21 YEARS, S/O.ABOOBACKER C.H, CHEMMANAMKUNDIL HOUSE, NORTH CHITHARI, CHITHARI PO, CHITHARI VILLAGE, KASARAGOD DISTRICT. 2. RAMSHEED C, AGED 22 YEARS, S/O.C,.MUHAMMED, RAMSHEED MANZIL, CHITHARI PO, CHITHARI VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. STATE - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE STATION HOUSE OFFICER, HOSDURG POLICE STATION, KASARAGOD DISTRICT, BY SRI. V. TEKCHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 817 of 2010 ------------------------------------ Dated this the 17th day of February, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.4 and 5 in C.P. No. 99 of 2009 on the file of the Court of the Judicial Magistrate of the First Class-I, Hosdurg. 2. The offences alleged against the petitioners are under Sections 143, 147, 148, 341, 324, 332 and 308 read with Section 149 of the Indian Penal Code and Section 3(1) of the P.D.P.P. Act. 3. Petitioners apprehend arrest in execution of the non bailable warrant issued by the Court of the Judicial Magistrate of the First Class-I, Hosdurg. In Paragraph 7 of the Bail Application, following averments have been made: “It is respectfully submitted that the above crime was originally numbered as C.P. No.55/2009 and the same is committed to the Sessions Court on 14.09.2009 by the learned Magistrate. Since the petitioners were not appeared in B.A. No. 817 of 2010 2 the committal proceedings the case against them was split up and renumbered as C.P.No. 99/2009 by issuing non bailable warrant. Now a non bailable warrant pending against the petitioners and the case is posted to 23.02.2010 for report. It is submitted that the petitioners were not aware of the above pendency of the case against them and they were not questioned or summoned by the investigating officials during the crime stage. Instead of issuing summons or questioning the petitioners they were arrayed as accused in the crime with an absconding charge. It is most respectfully submitted that the petitioners were not absconded any where but they were much available in the locality in connection with their studies. At present a non bailable warrant is pending against the petitioners hence petitioners apprehending an imminent arrest. Hence the petitioners approach this Honourable Court by filing this application for anticipatory bail. “ 4. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009 (3) KHC 471] it was held that in cases where non bailable warrant is issued by a court, the proper remedy of the accused is B.A. No. 817 of 2010 3 to approach that court which issued the warrant and to apply for recalling the warrant and for the grant of bail. It was also observed in Vineeth Somarajan's case that when such an application for bail is filed, the same has to be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007 (2) K.L.T. 280]. Reserving the right of the petitioners 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 ln