IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 Bail Appl..No. 8607 of 2011 CRIME NO.513 OF 2004 OF KOOTHUPARAMBA POLICE STATION LPC.NO.76/2007 OF J.M.F.C.,KUTHUPARAMBA PETITIONER: 1ST ACCUSED: -------------------- NABEEL.K.P., S/O.ABDUL KHADER, AGED 35 YEARS, THAMBU, ANJARAKANDY.P.O., KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENTS: COMPLAINANT: --------------- THE SUB INSPECTOR OF POLICE, KOOTHUPARAMBA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 8607 OF 2011 ------------------------------------------------------ Dated this the 17th day of October, 2011 O R D E R The petitioner is the first accused in Crime No.513 of 2004 of Koothuparamba Police Station, which is now pending as L.P.Case No.76 of 2007 on the file of the Court of the Judicial Magistrate of the First Class, Koothuparamba. 2. The offence alleged against the accused are under Sections 447 and 427 read with Section 34 of the Indian Penal Code. 3. It is stated that during crime stage, the petitioner was released on bail. It is further stated in paragraph 3 of the Bail Application thus: “3. The Petitioner is innocent of the allegations levelled against him. He is not aware of the pendency of the case. Since he was innocent. He had no occasion to enquire about the pendency of any case also. Originally he has been employed abroad. Now BAIL APPL. NO.8607 OF 2011 :: 2 :: the Petitioner is on leave and he came to know about the pendency of the case. The Learned Magistrate, due to the non appearance of the accused, issued co- ersive process and now non bailable warrant is pending against the Petitioner. The Petitioner is not involved in the commission of offence as alleged. He is ready to co-operate with the trial of the case. In view of the fact that final report is submitted and investigation is complete custodial interrogation is absolutely unnecessary. There is no purpose in remanding the Petitioner to judicial custody. The Petitioner has no other criminal antecedents.” 4. The petitioner apprehends arrest in execution of the non- bailable warrant issued by the Court. Therefore, he has filed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure. 5. 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 approach the Court which issued the warrant for re-calling the warrant and for the grant of bail. He cannot, normally, straight BAIL APPL. NO.8607 OF 2011 :: 3 :: 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 in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/