IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 Bail Appl..No. 7689 of 2009 CRIME NO.176 OF 2003 OF KANNUR TOWN POLICE STATION PETITIONER/ACCUSED -------------------------------------- SHAMAL.R.K, SON OF R.K.KUMARAN VAIDYAR, RAMANKANDY HOUSE, MUZHAPPILANGAD.P.O, KANNUR. BY ADV. SRI.K.MOHANAKANNAN RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, KANNUR TOWN POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10/02/2010, ALONG WITH BA NO.7690 & 7691 OF 2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS.7689, 7690 & 7691 OF 2009 ------------------------------------------------------ Dated this the 10th day of February, 2010 O R D E R These are applications for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner, Shamal R.K.,is an accused in Crime Nos.176, 177 and 178 of 2003 of Kannur Town Police Station. 2. The offences alleged against the petitioner in Crime No.176 of 2003 are under Sections 143, 147, 148, 151, 332, 333, 353, 452, 435 and 307 read with Section 149 of the Indian Penal Code and Section 3(1) of the PDPP Act. In Crime Nos.177 and 178 of 2003, it is submitted that the offence under Section 3(1) of the PDPP Act is not included but the other offences alleged are almost the same. 3. The petitioner submits that since he was not available in India, the cases against him were split up. The cases against the other accused were committed to the Sessions Court. It is submitted that applications were submitted by the Public Prosecutor before the Sessions Court for withdrawal from prosecution in all the three B.A. NOS. 7689, 7690 & 7691 OF 2009 :: 2 :: cases. Those applications were allowed and the accused persons were discharged under Section 321(a) of the Code of Criminal Procedure, as per the order dated 16.10.2007. Annexure I produced along with B.A.No.7689 of 2009 shows that there are 271 accused persons in Crime No.176 of 2003. 4. The petitioner came to India recently. His marriage was to be solemnized on 26.12.2009. In these circumstances, he filed the applications for anticipatory bail. As per the interim orders dated 21.12.2009, directions were issued not to arrest the petitioner in connection with the aforesaid three crimes till 10.1.2010, on condition that the petitioner shall surrender his passport before the investigating officer within a period of one week. It was also mentioned in the orders dated 21.12.2009 that the learned Magistrate will be free to pass appropriate orders either for the retention or for the release of the passport, when such question arises in future. 5. As stated earlier, the cases against the petitioner were split up and now the cases against him are pending as LP.Nos.128, 141 and 142 of 2005, on the file of the Court of the Judicial Magistrate of B.A. NOS. 7689, 7690 & 7691 OF 2009 :: 3 :: the First Class I, Kannur. Non-bailable warrant was issued by the learned Magistrate. The petitioner apprehends arrest in execution of the non-bailable warrant. 6. The learned counsel for the petitioner submitted that since the prosecution has withdrawn from the prosecution, nothing remains and that the cases cannot be proceeded against the petitioner. It is not necessary to consider that question in these Bail Applications. That question is left open to be considered at the appropriate stage and in appropriate proceedings. 7. 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 learned Magistrate has to dispose of the Bail Application in the light of the B.A. NOS. 7689, 7690 & 7691 OF 2009 :: 4 :: 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. When an application for bail is filed, the learned Magistrate shall taken note of the withdrawal from prosecution and the fact that several accused persons were involved in the cases and that the cases were withdrawn in 2007. (K.T.SANKARAN) Judge ahz/