IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 Bail Appl..No. 10816 of 2011() ------------------------------ LP NO.80/2008 OF JFMC-II, KOTTARAKKARA IN CRIME NO.278/2003 OF KADAKKAL POLICE STATION, KOLLAM DT. .................... PETITIONER/2ND ACCUSED -------------------------------- ASHARAF, S/O.MUHAMMED MUSTAFA, ANIMOAN MANZIL, DERPPAKKADU, AYIRAKUZHY.P.O., KADAKKAL, KOLLAM DISTRICT. BY ADV. SRI. K.SIJU SMT.BINDU GEORGE RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KADAKKAL POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. PUBLIC PROSECUTOR SRI.R.RENJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.10816 of 2011 --------------------------- Dated this the 22nd day of December, 2011 O R D E R The petitioner apprehends arrest in execution of a non bailable warrant issued in L.P.No.80 of 2008 on the file of the court of the Judicial Magistrate of the First Class-II, Kottarakkara and therefore, he has filed this application for anticipatory bail. 2. It is stated in paragraphs 2 to 7 of the Bail Application thus : “2. The gist of the prosecution allegation is that accused Nos.1 to 4 promised the son in law of the de facto complainant a visa and collected ` 1,30,000/-. The accused persons arranged a visa to Dubai and then only he realised that it is a visiting visa and thereby cheated the accused persons. The father in law of the aggrieved person filed a private complaint before JFMC-II, Kottarakkara and was forwarded for investigation and a crime was registered as Crime No.278/2003 of Kadakkal Police Station. The certified copies BA 10816/11 2 of complaint and FIR in Crime No.278/2003 are produced herewith as Annexure 1 and 2 respectively. 3. The petitioner was not arrested in the crime stage. The investigating officer filed a final report before the JFMC-II, Kottarakkara on 28.8.2003 and the learned Magistrate took cognizance of the offence as C.C.No.1004 of 2003. The certified copy of final report in Crime No.278/2003 of Kadakkal Police Station is produced herewith as Annexure 3. 4. It is respectfully submitted that the petitioner was falsely implicated in the crime. At the time of alleged occurrence, the petitioner was in Gulf. Even according to the prosecution accused Nos.A1, A3 and A4 had collected the money and the petitioner was in Gulf. He had no complicity in the alleged offence. The process from the court was not served on him, since he is permanently settled with his family in UAE. 5. The petitioner is now back in India in connection with the marriage of her daughter, which was scheduled on 25.12.2011 at BA 10816/11 3 Nithyasree Auditorium, Kanjirathummoodu, Kadakkal. Wedding invitation letter of the petitioner's daughter is produced herewith as Annexure 4. 6. The petitioner respectfully submitted that he is willing to co-operate with the trial of the case. He never absconded from the process of court. The case against other accused persons were proceeded in C.C.No.1004/2003 and culminated in acquittal. Since the petitioner was not in station, he could not participate in the trial. Hence, the case against him was split up and included in L.P.No.80/2008 on the file of JFMC-II, Kottarakkara. 7. It is submitted that there is no willful absconding or disobedience to the process of court. The crime was registered, investigation was conducted and final report was filed while the petitioner was employed in Gulf.” 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 BA 10816/11 4 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. 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 vs. 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 csl