IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 Bail Appl..No. 5520 of 2009 CRIME NO.103 OF 1995 OF RAMAMANGALAM POLICE STATION C.C.NO.840 OF 1996 ON THE FILE OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, KOLENCHERY. PETITIONER: -------------------- SABU.P.B., S/O.BALAKRISHNAN, AGED 47 YEARS, THAYIL VADAKETHIL, MAHADEVIKKAD P.O., KARTHIKAPALLY, ALAPPUZHA. BY ADV. SRI.JIJI THOMAS SMT.SMITHA MATHEW RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, RAMAMANGALAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5520 OF 2009 ------------------------------------------------------ Dated this the 21st 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 the accused in C.C.No.840 of 1996, on the file of the Court of the Judicial Magistrate of the First Class, Kolenchery (Crime No.103 of 1995 of Ramamangalam Police Station). 2. The offence alleged against the petitioner is under Section 420 of the Indian Penal Code. 3. The allegation is that the petitioner received amounts promising visa to the de facto complainant. The de facto complainant was taken to Bombay twice, but visa was not arranged and the money was not paid back. 4. After completing the investigation, charge was laid in the B.A. NO. 5520 OF 2009 :: 2 :: case in 1996 and after taking cognizance, the case was numbered as C.C.No.840 of 1996. 5. The petitioner contends that he did not receive any summons. Now, a non-bailable warrant is pending against him. Petitioner apprehends arrest and, therefore, he has filed this application for anticipatory bail. According to the petitioner, he is a heart patient and he has undergone surgeries for the same. 6. The CD file would disclose that the police had even gone to Bombay on search of the petitioner, but they could not find him out. 7. 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, the remedy of the accused is to file an application for withdrawal of the warrant and for the grant of bail. 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 taking into account the principles laid down in Biju v. State of Kerala (2007(2) KLT 280). B.A. NO. 5520 OF 2009 :: 3 :: Reserving the right of the petitioner to apply before the Court for withdrawal of the warrant and for the grant of bail, this Bail Application is closed. If such applications for withdrawal of the warrant and for grant of bail are filed, those applications shall be disposed of by the learned Sessions Judge in the light of the aforesaid decisions. (K.T.SANKARAN) Judge ahz/