IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 Bail Appl..No. 1391 of 2010 CRIME NO.945 OF 2009 OF ALUVA POLICE STATION, ERNAKULAM PETITIONERS/7TH ACCUSED ------------------------------------------- SREENIVASAN, S/O.SHANMUGHAM, SMR JWELLERY, BIG BAZAR STREET, COIMBATORE. BY ADV. SRI.P.K.ANIL RESPONDENTS: COMPLAINANT/STATE -------------------------------- 1. THE SUB INSPECTOR OF POLICE, ALUVA POLICE STATION. 2. STATE, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1391 OF 2010 ------------------------------------------------------ Dated this the 8th 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 is accused No.7 in Crime No.945 of 2009 of Aluva Police Station, Ernakulam District. 2. The offence alleged against the accused are under Sections 457, 380, 461, 411 and 414 read with Section 34 of the Indian Penal Code. 3. It is alleged that between the night of 7.4.2009 and the noon of 8.4.2009, accused Nos.1 to 4 committed theft of 33 sovereigns of gold ornaments from the house of the de facto complainant. It is alleged that apart from the gold ornaments, a sum of Rs.10,000/- and other articles worth Rs.15,000/- were also stolen from the house of the de facto complainant. Accused No.1 Moideen was arrested on 28.1.2010. He made a confession statement. He stated that 14 ½ sovereigns of gold, which he got as his share of the B.A. NO. 1391 OF 2010 :: 2 :: booty, were sold by him in a shop at Coimbatore. Accordingly, the Sub Inspector of Police and party went to Coimbatore along with the first accused. Accused No.1 identified accused No.7 as the person to whom he had sold the gold ornaments. The Sub Inspector of Police and party contacted the Coimbatore police. Accused No.7 was also brought to the police station. However, it is alleged that the Coimbatore police did not afford any assistance. Moreover, on coming to know of the incident, several traders assembled near the police station and stated that they would not allow the petitioner to be arrested and taken to Kerala unless there was a warrant issued by a competent court. The Coimbatore police also took a similar view. Therefore, the Sub Inspector of Police could not apprehend the petitioner and bring him to Kerala. On 30.1.2010, the Circle Inspector of Police, Aluva filed a report before the Judicial Magistrate of the First Class, Aluva stating these facts and requesting for issuing a non-bailable warrant for the arrest of the petitioner. The Judicial Magistrate of the First Class, Aluva issued a non-bailable warrant for the arrest of the petitioner. At that juncture, the petitioner has filed this Bail Application. 4. In Vineeth Somarajan @ Ambadi v. State of Kerala B.A. NO. 1391 OF 2010 :: 3 :: (2009 (3) KHC 471), it was held that where non-bailable warrant is issued by the court, 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). 5. The learned counsel for the petitioner submitted that the petitioner is not involved in any other offence of similar nature. He also submitted that the punishment provided for the offence under Section 411 of the Indian Penal Code is imprisonment of either description for a term which may extend to three years or with fine or with both. In these circumstances, it is submitted that the petitioner is entitled to anticipatory bail. 6. As held in Vineeth Somarajan's case, the remedy of the petitioner is to approach the court which issued the non-bailable B.A. NO. 1391 OF 2010 :: 4 :: warrant. The petitioner would be free to raise all the points before the court at the time when he surrenders. 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 ahz/