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. 9962 of 2011() ----------------------------- LP.97/2006 of J.M.F.C.-I,KOZHIKODE .................... PETITIONER ------------------------------ JAHANGIR GOPAL, S/O.LATE GOPAL, AGED 53 YEARS, R/A.APARTMENT 502 SMR COSTLE, NO.80,BANASWADI MAIN ROAD, BANGALORE-560043 BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENT(S): --------------- 1. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM,KOCHI 2. V.V.KHADER, S/O.MUHAMMED KOYA, R/A.VAIDYATHUMVEETTIL HOUSE, PUTHIYA NIRATHU, ELATHUR, KOZHIKODE DIST BY P.P.SRI.R.RANJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.9962 of 2011 ---------------------------------------------- Dated this the 08th day of December, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in L.P.No.97 of 2006 on the file of the court of the Judicial Magistrate of the First Class-I, Kozhikode. It is stated that the offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act. Due to non- appearance of the petitioner, non-bailable warrant was issued by the court after treating the case as long pending. The petitioner apprehends arrest in execution of the non-bailable warrant. 2. In the Bail Application it is stated as follows: “As a matter of fact, the address of the petitioner in the said proceeding was incorrectly shown as Proprietor, Kalpa Oils, Cherootty Road, Kozhikode. In fact, the petitioner had closed down his business at the said address long back and has been permanently settled at Bangalore since a decade. Summons was never served on the Bail Appln.No.9962/2011 : 2 : petitioner. Pursuant to the petitioner's absence, the case was transferred to the long pending register, based on principles enunciated under Rules 35 to 39 of the Criminal Rules of Practice, Kerala. The case was then re-numbered as L.P.No.97 of 2006. 2. A non-bailable warrant has been issued against the petitioner in L.P.No.97 of 2006, which is yet to be executed. The petitioner has come to know of the proceedings only a couple of days back. Discreet enquiries revealed the specifics of the case.” 3. 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 warrant and for the grant of bail. He cannot, normally, straight away approach the High Court by filing a 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 Bail Appln.No.9962/2011 : 3 : 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, to recall the warrant and to grant bail, this Bail Application is closed. K.T.SANKARAN, JUDGE skj