IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 Bail Appl..No. 4440 of 2008() ----------------------------- CC.15/2005 of C.J.M. COURT, MANJERI ................... PETITIONER --------------------------- GAFOOR, S/O.MUHAMMED HAJI, ARIKADAN HOUSE, KUNNUMPURAM, KONDOTTY. BY ADV. SRI.R.MANOJ SMT.SINDU MANOJ RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S. BREEZ. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ----------------------------------------------- Bail Appl.No. 4440 of 2008 ----------------------------------------------- Dated this the 14th day of July, 2008. ORDER Petition for anticipatory bail. 2. The petitioner is the accused in C.C.No.15 of 2005 before the Chief Judicial Magistrate Court. The alleged offences are under Section 406 and 420 of IPC. The petitioner was once granted bail but thereafter he did not appear before the trial court and hence non- bailable warrant was issued against him. The petitioner now apprehends arrest and hence this petition. 3. Learned counsel for the petitioner submitted that the petitioner had to go abroad and hence he could not appear before the court during trial. He has not committed any offence. He had instructed the counsel to file exemption petition till the actual commencement of the trial during his absence. But this was not done and hence the bail was cancelled and a non-bailable warrant was issued. According to learned counsel for petitioner, petitioner is prepared to surrender before the Magistrate Court and hence anticipatory bail may be granted. 4. Going by the language of Section 438 Cr.P.C., it is clear that [BA.No.4440/08] 2 this Court can exercise jurisdiction under the said section only if the petitioner has a reason to believe that he may be arrested “on accusation of having committed a non-bailable offence”. In this case, the arrest is apprehended not because of accusation of petitioner having committed any non-bailable offence, but it is only because non-bailable warrant was issued by a court. He is sought to be arrested only in execution of a lawful warrant issued by a competent court having jurisdiction to do so. Since the accused is required in execution of a non-bailable warrant issued by the trial court because of his default it may not be proper for this Court to interfere in the lawful proceedings pending before the trial court. This circumstance is not covered by Section 438 of Cr.P.C. 5. If the petitioner surrenders before the trial court and satisfies the court that he had sufficient reason for his absence and was not willful, there is no reason why bail is refused to him. The petitioner may seek his remedy before the trial court, but this Court cannot entertain the anticipatory bail application. Application is dismissed. K. HEMA, JUDGE. Krs.