IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 Bail Appl..No. 9893 of 2011() ----------------------------- CC.62/2008 of J.M.F.C.-II, HARIPAD CRIME NO.246/2008 OF HARIPAD POLICE STATION .................... PETITIONERS/ACCUSED --------------------------- 1. AHAMMED KUNJU, S/O. USMAN KUNJU, AGED 47 YEARS, PORATTU VEEDU, WARD NO.V OF KARUVATTA GRAMA PANCHAYATH, KARUVATTA NORTH MURI, KARUVATTA VILLAGE, ALAPPUZHA DISTRICT. 2. SUHARA BEEVI, W/O. USMAN KUNJU, AGED 86 YEARS, PORATTU VEEDU, WARD NO.V OF KARUVATTA GRAMA PANCHAYATH, KARUVATTA NORTH MURI, KARUVATTA VILLAGE, ALAPPUZHA DISTRICT. 3. IBRAHIMKUTTY, S/O. USMAN KUNJU, AGED 57 YEARS, PORATTU VEEDU, WARD NO.V OF KARUVATTA GRAMA PANCHAYATH, KARUVATTA NORTH MURI, KARUVATTA VILLAGE, ALAPPUZHA DISTRICT. 4. BADARUDDIN, S/O. USMAN KUNJU, AGED 65 YEARS, RAHMATHULLA MANZIL, WARD NO.V OF KARUVATTA GRAMA PANCHAYATH, KARUVATTA NORTH MURI, KARUVATTA VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.9893 of 2011 --------------------------- Dated this the 8th day of December, 2011 O R D E R The petitioners apprehend arrest in execution of a non bailable warrant issued in C.C.No.62 of 2008 on the file of the court of the Judicial Magistrate of the First Class-II, Haripad and therefore, they have filed this application for anticipatory bail. 2. In the Bail Application, the petitioners stated as follows : “The trial court enlarged the petitioners on bail. They were appeared before the trial court on several postings also. Being a matrimonial dispute, the matter was referred for a settlement in Adalath. The petitioners were present on one posting, but on that day the de facto complainant was absent ; and on another occasion the de facto complainant was present, but the petitioners were absent. However, the mediation could not considered and therefore, the case was again taken up before the trial court. BA 9893/11 2 2. However, the petitioners could not appear before the trial court thereafter and hence the trial court issued non bailable warrant to the petitioners. Thereafter, proceedings under Sections 82 and 83 of Crl.P.C. initiated against the petitioners on 5.9.2011. 3. As a matter of fact the counsel for the petitioners told them that the entire matter can be settled and they need not be regularly present in court. The petitioners being aged people believe that it will be convenient for them also. However, thereafter their counsel was remanded in jail as a pre-trial prisoner in a case involving allegations of the commission of offences punishable under Narcotic Drugs and Psychotropic Substances Act, 1985.” 3. In Vineeth Somarajan @ Ambady 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 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 by filing a Bail Application under BA 9893/11 3 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). In the facts and circumstances of the case, the Bail Application is closed with liberty to the petitioner to approach the court which issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioner, the learned Magistrate shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. K.T.SANKARAN JUDGE csl