IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 Bail Appl..No. 7604 of 2009 CRIME NO.69 OF 2005 OF EDAKKAD POLICE STATION PETITIONER/ACCUSED NO.1 ------------------------------------------- CHERUVARI SHAMJITH, S/O.BASKARAN, PACHAPOIKA, PATHIRIYAD AMSOM, PARAMBAYI, KANNUR. BY ADV. SRI.P.V.SURENDRANATH RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON 23/12/2009 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 7604 OF 2009 ------------------------------------------------------ Dated this the 23rd 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 the first accused in Crime No.69 of 2005 of Edakkad Police Station. 2. The offences alleged against the petitioner and the other accused are under Sections 143, 147, 148, 449, 427, 324 and 307 read with Section 149 of the Indian Penal Code. 3. Bail was granted to the petitioner on certain conditions. The petitioner was directed to surrender his passport. It would appear that, later, as per the order passed by the Appellate Court, the passport was released to the petitioner to enable him to go abroad. A condition was imposed that the petitioner should appear as and when directed by the Court. 4. The committal court directed the petitioner to appear before Court on 24.10.2008. Finding it difficult to appear on that day, the B.A. NO. 7604 OF 2009 :: 2 :: petitioner moved Crl.M.C.No.3935 of 2008 before this Court. The Crl.M.C. was disposed of as per the order dated 21.10.2008. For the sake of convenience, paragraph 2 of the order is extracted below: “2. I am afraid, considering the nature of allegations and the nature of the proceedings against the petitioner, the petitioner cannot be exempted in toto from appearing before the committal court. But I am satisfied that the learned Magistrate can be directed to consider the application of the petitioner for exemption from appearance till the last date on which the order of committal is to be passed. Till such date, the petitioner can be permitted to be represented by his counsel. If the petitioner is unable to appear before the learned Magistrate immediately, the petitioner may through his counsel request the learned Magistrate to post the case to a specific date on which date he will be able to appear before the learned Magistrate. Considering the said request on merits, appropriate orders must be passed by the learned Magistrate.” 5. Learned counsel for the petitioner submitted that the committal court posted the case to 24.11.2008 for appearance of the petitioner. The petitioner did not appear. He absconded. The counsel states that though the petitioner filed an application to B.A. NO. 7604 OF 2009 :: 3 :: excuse his absence, the committal court was not inclined to accept the same. The case was treated as long pending, in so far as it relates to the petitioner. The case is pending as LPC.No.59 of 2009, on the file of the Court of the Additional Chief Judicial Magistrate, Thalassery. A non-bailable warrant was issued for the arrest of the petitioner. The petitioner apprehends arrest in execution of the non- bailable warrant. Therefore, this Bail Application is filed. 6. Learned counsel for the petitioner submitted that the petitioner could not come to India due to various reasons. It is not relevant to state the reasons. It is stated that the petitioner came to India on 15.11.2009. He is prepared to co-operate with the trial. The counsel also stated that the marriage of the petitioner is settled and it has to be solemnized without delay. It is submitted that anticipatory bail may be granted to the petitioner. 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, normally, the person against whom the warrant is issued has to approach the Court which issued the warrant for re-calling the B.A. NO. 7604 OF 2009 :: 4 :: warrant and for the grant of bail. He cannot, normally, straight away approach the High Court with the 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). Reserving the right of the petitioner to move the Court which issued the non-bailable warrant for re-calling the warrant and for grant of bail, the Bail Application is closed. (K.T.SANKARAN) Judge ahz/