IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 Bail Appl..No. 6029 of 2009() ----------------------------------------- CRIME NO.490/2006 OF MALA POLICE STATION, THRISSUR. .................... PETITIONER/4TH ACCUSED: ------------------------------------------ SUNIL JOSE, AGED 37, S/O.JOSE, CHENGINIYADAN (H), KUZHUR, THRISSUR DISTRICT. BY ADV. SRI.K.S.RAJEEV (ALUVA) RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY S.I OF POLICE, MALA POLICE STATION BY G.P. HIGH COURT OF KERALA. SRI. TEKCHAND, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No.6029 of 2009 ------------------------------------ Dated this the 20th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.4 in C.C No.2264/2006 of the Judicial Magistrate of the First Class, Chalakudy (Crime No.490/2006 of Mala Police Station). 2. The offence alleged against the petitioner is under Section 498A read with Section 34 of the Indian Penal Code. 3. The crime was registered in 2006. It would appear that charge sheet was filed on 17/12/2006 and the case was taken on file as C.C. No.2264/2006 of the court of Judicial Magistrate of the First Class, Chalakudy. The case of the petitioner is that he went abroad in 2006 and came back to India only in 2009. No summons was received by him. It is submitted that he was arrested at the trial stage and he was released on bail. After the charge sheet was filed, no summons was received by him. However, a non-bailable warrant is issued against the petitioner. The petitioner B.A. No.6029 /2009 2 apprehends arrest in execution of the warrant. Therefore he has filed this application for bail. The petitioner moved an application for anticipatory bail before the learned Sessions Judge. That application was disposed of by the order dated 7/10/2009 directing the petitioner to move the trial court and seek bail. It was also held that the matters narrated by the petitioner can be brought to the notice of the trial court and the trial court was directed to pass appropriate orders. 4. Apprehension of the petitioner is that if he appears before the trial court, there is every likelihood that the Magistrate may remand him to judicial custody. 5. 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, normally, an application under Section 438 of the Code of Criminal Procedure could not be filed by the accused before the High Court. The remedy of the accused is to apply for recalling the warrant and for grant of bail. It was also observed in Vineeth Somarajan's case that when such an application for bail is filed, the trial court has to dispose of the B.A. No.6029 /2009 3 same in accordance with the principles laid down in Biju Vs. State of Kerala [2007(2) K.L.T 280] Reserving the right of the petitioner to move the trial court as aforesaid, this Bail Application is closed. The trial court shall take into account the decisions referred to above and shall dispose of the application on the same date on which the application is filed by the petitioner. The learned counsel for the petitioner had handed over the Passport of the petitioner for perusal. The petitioner shall produce the Passport if necessary, before the trial court. K.T. SANKARAN, JUDGE scm