IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 Bail Appl..No. 7038 of 2011() ----------------------------- CP.118/2005 of J.M.F.C. - I, KARUNAGAPPALLY CRIME NO.106/2002 OF KARUNAGAPPALLY POLICE STATION .................... PETITIONER/ACCUSED: ---------------------- UTHAMAN, AGED 44 YEARS, S/O.BALAN, MANJERY HOUSE, KAIPARAMBU.P.O., THRISSUR. BY ADV. SRI.P.G.SURESH SRI.C.V.MANUVILSAN SMT.K.VIDYA SRI.RAJAN VISHNURAJ RESPONDENT: COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY S.I. OF POLICE, KARUNAGAPPALLY, REPRESENTED THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.7038 of 2011 ---------------------------------------------- Dated this the 29th day of September, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner/accused No.4 apprehends arrest in execution of non-bailable warrant issued in C.P.No.118 of 2005 on the file of the court of the Judicial Magistrate of the First Class, Karunagappally. It is stated that the petitioner was not arrested during the crime stage. 2. The learned Public Prosecutor submitted that the petitioner absconded. 3. 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 away approach the High Court by filing a Bail Application under Section 438 of the Bail Appln.No.7038/2011 : 2 : 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 bail, this Bail Application is closed. K.T.SANKARAN, JUDGE skj