IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Bail Appl..No. 6465 of 2009() ----------------------------------------- CRIME NO.424/1998 OF IRINJALAKUDA POLICE STATION. PETITIONER/3RD ACCUSED: ------------------------------------------ ANTU, S/O. OUSEPH, VELIYAN HOUSE, POTTA, CHALAKKUDY. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING DEPUTY SUPERINTENDENT OF POLICE, IRINJALAKUDA. SRI. TEKCHAND, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/10/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 6465 of 2009 ------------------------------------ Dated this the 30th day of October, 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 3rd accused in L.P.R No.40/2004 in C.P. No.8/2002 pending before the Court of the Judicial Magistrate of the First Class, Irinjalakuda. 2. The offences alleged against the petitioner are under Sections 447, 323, 354 and 294(b) read with Section 34 of the Indian Penal Code and Section 3(1)(x)&(xi) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act. 3. It is submitted that at the trial stage, the petitioner was granted bail. The contention of the petitioner is that he was not served with summons. The case was tried and it is stated that all other accused persons were acquitted. The case against the petitioner was split up and it was numbered as L.P.R. No.40/2004 on the file of the Court of Judicial Magistrate of the First Class, Irinjalakuda. The court issued B.A. No. 6465 /2009 2 non- bailable warrant for the arrest of the petitioner. The petitioner apprehends arrest and therefore, this application for bail is filed. 4. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009(3)KHC 471], it was held that in cases where non-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]. 5. In Ali Vs. State of Kerala [2000(2) K.L.T. 280], it was held that in cases coming under the SC/ST (Prevention of Atrocities) Act, there is no bar for the Magistrate to grant bail on the basis of the general principles enunciated in Section 437 of the Code of Criminal Procedure. In Sukumari Vs. State of Kerala [2001(1) K.L.T.22], this Court held that the power under Section 437 can be exercised even in a case which is exclusively B.A. No. 6465 /2009 3 triable by the court of Sessions. In the light of the decisions referred to above, the remedy of the petitioner is to approach the court which issued the warrant. If an application is filed to recall the warrant and for the grant of bail, the learned Magistrate shall consider and dispose of the same in the light of the decisions referred to above. The Bail Application is accordingly closed. K.T. SANKARAN, JUDGE scm