IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 Bail Appl..No. 7227 of 2009() ------ ----------------------------- CC.375/2001 of J.M.F.C.-III,KOZHIKODE .................... PETITIONER/ACCUSED: ----------------------------------- SAJEER K., AGED 28 YEARS, S/O.MUHAMMED, KALADY HOUSE, RASHEED NAGAR, MAMBURAM, THRIKKULAM AMSOM, DESOM, THIRURANGADI TALUK, MALAPPURAM. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT: -------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. V. TEKCHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 7227 of 2009 ------------------------------------ Dated this the 10th day of December, 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.2 in C.C. No.375/2001 on the file of the Court of the Judicial Magistrate of the First Class- III, Kozhikode. 2. The offence alleged against the accused is under Section 379 read with Section 34 of the Indian Penal Code. 3. The learned Public Prosecutor submitted that charge sheet was filed in the case on 28/4/2001. He submitted that during the crime stage, the petitioner could not be arrested. The presence of the petitioner could not be procured before court as he was absconding. Now a non-bailable warrant is issued against the petitioner and it is pending. The petitioner apprehends arrest in execution of the non-bailable warrant. Therefore, he has approached this Court under Section 438 of the Code of Criminal Procedure. 4. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009(3)KHC 471], it was held that in cases where non- B.A. No. 7227/2009 2 bailable warrant is issued by a court, the proper remedy of the accused is to approach that court which issued the warrant and to apply for recalling that warrant and for the grant of bail. It was also observed in Vineeth Somarajan's case that when such an application for bail is filed, the same has to be considered in the light of 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 learned Magistrate for recalling the warrant and for the grant of bail, this Bail Application is closed. K.T. SANKARAN, JUDGE scm