IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 Bail Appl..No. 1659 of 2010 S.T.NO.1533 OF 2006 OF JFCM III, TRICHUR PETITIONER: ACCUSED: JACOB.P.P., S/O.P.K.POULOSE, PORTHURKATTEN, PERUNGAVU, TRICHUR. BY ADV. SMT.E.V.MOLY RESPONDENTS: COMPLAINANT: 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHRI JAYAKUMAR, S/O.SREEDHARAN NAIR, MANGATTU HOUSE, MULLAKKARA DESOM, OLLOOKKARA VILLAGE, TRICHUR DISTRICT. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1659 OF 2010 ------------------------------------------------------ Dated this the 22nd day of March, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner apprehends arrest in execution of the non-bailable warrant issued by the Court of the Judicial Magistrate of the First Class III, Thrissur in S.T.No.1533 of 2006. 2. It is stated that the petitioner was running a shop in Thrissur District. He closed the shop and went to Chennai. When summons was received in S.T.No.1533 of 2006, he engaged a counsel, who filed vakalath. The counsel was appearing in Court. It is stated that no application was filed by the counsel to exempt the petitioner from appearing before Court personally. It is also stated that the counsel relinquished the vakalath subsequently. Non- bailable warrant was issued against the petitioner. It is also stated that proceedings under Sections 82 and 83 of the Code of Criminal Procedure were also taken. The petitioner apprehends arrest in B.A. NO. 1659 OF 2010 :: 2 :: execution of the warrant. It is stated that if he appears before the learned Magistrate, though the offence alleged against the petitioner is bailable, he is not likely to be released on bail. Therefore, the petitioner has approached this Court under Section 438 of the Code of Criminal Procedure. 3. In Vineeth Somarajan @ Ambadi 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 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). Reserving the right of the petitioner to move the Court which issued the non-bailable warrant, to recall the warrant and to grant B.A. NO. 1659 OF 2010 :: 3 :: bail, this Bail Application is closed. The petitioner would be free to put forward all the contentions as are raised in this Bail Application before the learned Magistrate. (K.T.SANKARAN) Judge ahz/