IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 Bail Appl..No. 6406 of 2009() ----------------------------- CC.2559/2004 of JUDL.M.F.C.-I,ERNAKULAM NOW PENDING AS L.P.NO.83/09 .................... PETITIONER/ACCUSED -------------------------------------- JAYAKUMAR T.B., SREE BALABHAVAN, KOLLAMPARAMBIL, IRUMPANAM PO, ERNAKULAM. BY ADV. SRI.T.I.DANIEL RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. FATHIMA USMAN, W/O.USMAN, THAMEEM MANZIL, NAINAKUTTY LANE, S.R.M.ROAD, KOCHI-12. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.6406 of 2009 --------------------------------------------- Dated this the 9th day of November, 2009 ORDER 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.2559 of 2004 which is now pending as L.P.No.83 of 2009 on the file of the court of the Judicial Magistrate of the First Class-I, Ernakulam. 2. The offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act. 3. The petitioner states that he did not receive summons in C.C.No.2559 of 2004. It is stated that he went to Qatar in 2004 and he came back to India only on 23.10.2009. It is stated that a non bailable warrant is pending against him in L.P.No.83 of 2009. 4. In Vineeth Somarajan @ Ambadi vs. 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 BA No.6406/2009 2 issued has to approach the court which issued the warrant for recalling the warrant and for the grant of bail. He cannot, normally, straight away approach the High Court invoking 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 vs. 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. If an application is filed before the court, the court shall dispose of the same in the light of the principles laid down in the aforesaid decisions. K.T.SANKARAN, JUDGE csl