IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Bail Appl..No. 1501 of 2010 CRIME NO.359 OF 2009 OF CHAVARA POLICE STATION, KOLLAM DISTRICT PETITIONER/ACCUSED NO.5 ------------------------------------------- KIRAN, AGED 19 YEARS, S/O.KARTHIKEYAN, PONNANA PADINJATTETHIL HOUSE, PUTHUKKAD MURI, CHAVARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENTS: COMPLAINANT -------------------------- 1. STATE OF KERALA REPRESENTED BY HOME SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, THROUGH SUB-INSPECTOR OF POLICE, CHAVARA POLICE STATION. (NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM) 2. SUB-INSPECTOR OF POLICE, CHAVARA POLICE STATION, KOLLAM DISTRICT. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1501 OF 2010 ------------------------------------------------------ Dated this the 10th day of March, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.5 in Crime No.359 of 2009 of Chavara Police Station, Kollam District. 2. The offences alleged against the accused are under Sections 143, 147, 148, 324, 326 and 308 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act. 3. It is submitted that at the crime stage, the petitioner was not arrested. Charge sheet was filed in the case. The case is now pending as C.P.No.261 of 2009, on the file of the Court of the Judicial Magistrate of the First Class, Karunagappally. It is submitted that the learned Magistrate has issued non-bailable warrant for the arrest of the petitioner. The petitioner apprehends arrest in execution of the non-bailable warrant. Therefore, he has filed this application for anticipatory bail. 4. In Vineeth Somarajan @ Ambadi v. State of Kerala B.A. NO. 1501 OF 2010 :: 2 :: (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 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). 5. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. 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 ahz/