IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 Bail Appl..No. 7251 of 2009() ----------------------------- CRIME NO.153/2008 OF KOLLAM EAST POLICE STATION .................... PETITIONERS/ACCUSED 1 & 2 ------------------------------------------------ 1. SHAJI, S/O.JOSEPH, LAKSHMIPURAM THOPPU, THANNI, MAYYANADU, KOLLAM. 2. JOYICHAN @ PODIMON, S/O.WALTER LAKSHMIPURAM THOPPU, THANNI, MAYYANADU, KOLLAM. 3. ABEL, S/O.JEROME, LAKSHMIPURAM THOPPU, THANNI, MAYYANADU, KOLLAM. BY ADV. SRI. K.SHAJ SRI.SAJJU.S RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.7251 of 2009 --------------------------------------------- Dated this the 10th day of December, 2009 ORDER The petitioners, who are accused Nos.3, 4 and 5 in C.C.No. 136 of 2008 on the file of the court of the Chief Judicial Magistrate Court, Kollam have filed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure. 2. The offences alleged against the petitioners are under Sections 143, 147, 148, 452 and 427 read with Section 149 of the Indian Penal Code. 3. It is stated that during the crime stage, the petitioners were not arrested. The petitioners state that they did not receive summons from court. Now, they allege that a non- bailable warrant was issued by the court. They apprehend arrest in execution of the non bailable warrant. 4. In Vineeth Somarajan @ Ambady vs. State of Kerala (2009(3) KHC 471), it was held that when non bailable warrant is issued by the court on account of non appearance of BA No.7251/2009 2 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 invoking 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 vs. State of Kerala (2007(2) KLT 280). Reserving the right of the petitioners to move the court which issued the warrant to recall the warrant and for the grant of bail, this Bail Application is closed. K.T.SANKARAN, JUDGE csl