IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 Bail Appl..No. 4666 of 2008() ----------------------------- SC.30/2002 of ADDL.DISTRICT COURT (ADHOC)-IV, TRIVANDRUM .................... PETITIONER/2ND ACCUSED --------------------------------------- DINESH KUMAR @ DINESHAN, S/O.DASAN, AGED 29 YEARS, EDAKADUTHATTU PUTHEN VEEDU, AYINKAMOM, PARASSALA, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.No. 4666 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of July, 2008 O R D E R Application for anticipatory bail. 2. The alleged offences are under sections 143, 147, 148, 149, 34, 323, 332, 225(B) and 307. According to the petitioner, he was in custody for 50 days during crime stage and he was granted bail. Thereafter, in the committal proceedings also, he was appearing. But, the case was subsequently committed to the Sub Court, Neyyattinkara and it was transferred to Fast Track Court, Thiruvananthapuram. He could not appear before the Fast Track Court, since he had to stay out of Thiruvananthapuram for nearly 13 months in connection with his employment. Therefore, non bailable warrant was issued against the petitioner and he apprehends arrest. 3. On hearing both sides, it is clear that the petitioner is apprehending arrest only because he was absent during trial before the Fast Track Court. The non bailable warrant is issued for procuring his presence before the court below for trial. Apprehension of arrest is because of issuance of a non bailable warrant by a court of law. The non bailable BA 4666/08 -2- warrant is issued not directly because of his involvement of a non bailable offence, but as he has not been appearing before the court below. The trial has to proceed with and his presence is essential before the court below and therefore a non bailable warrant was issued by a court having competent to issue the same. Therefore, granting of anticipatory bail will interfere with the proceedings of the court below. Going by the language of section 438 Cr.P.C., the discretionary power can be invoked only in exceptional circumstances. 4. Admittedly, the petitioner was granted bail, when he was arrested on accusation of a non bailable offence. That stage is over now. However, learned counsel for the petitioner submitted that the petitioner could not appear before the court below for reasons beyond his control. If the petitioner has any bona fides, this can be brought to the notice of the court below in which event, the court below will consider the matter and dispose of the application, if any, in accordance with law, if the petitioner surrenders before the court below within seven days from today. With these observations, this application is disposed of. K. HEMA, JUDGE. mn.