IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 Bail Appl..No. 8077 of 2011() ----------------------------- SC.No.292/2006 of ADDL.SESSIONS COURT (FAST TRACK-II), PATHANAMTHITTA CRIME NO.228/2005 OF THIRUVALLA POLICE STATION .................... PETITIONERS/ACCUSED: -------------------- 1. MANIKUTTAN @ MONAI, PULIKKATHARA VEEDU, KUTTAPUZHA VILLAGE, ERAVALLYPPARA, THIRUVALLA. 2. SURESH, S/O.THANKAPPAN, CHAKKARAPARAMBIL VEEDU, KUTTAPUZHA VILLAGE, ERAVALLYPPARA, THIRUVALLA. BY ADV. SRI.SAJITH KUMAR V. RESPONDENT: DEFACTO COMPLAINANT/STATE: ----------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. STATE PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.8077 of 2011 ---------------------------------------------- Dated this the 11th day of October, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Sessions Case No.292 of 2006 on the file of the court of the Additional Sessions Judge (Fast Track-II), Pathanamthitta. 2. Due to non-appearance of the petitioners, the case was treated as long pending as L.P.No.22 of 2010. The Sessions Court issued non-bailable warrant for the arrest of the petitioners. The petitioners apprehend arrest in execution of the non-bailable warrant. Therefore, this Bail Application is filed. 3. Paragraph Nos.3 and 4 of the Bail Application read as follows:- “3. It is submitted that on the allegations the petitioners are arrested and remanded to jail. They were in custody for about 40 days. The case after investigation was committed to the Sessions Court, Pathanamthitta. The petitioners Bail Appln.No.8077/2011 : 2 : were appearing before the trial court regularly. However their counsel (Adv.Jagadish) who was entrusted with the file went to Gulf in July 2009 and thereafter due to mistake about the posting dates they could not appear before the court resulting in cancellation of bail. 4. It is submitted that the non appearance of the petitioners were not willful. The counsel entrusted with the file went to Gulf and the petitioners were not properly informed. Only on getting intimation from police they came to know that the counsel was not appearing before the trial court. The case is presently pending as L.P.No.22/10. 4. 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 Bail Appln.No.8077/2011 : 3 : Court 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). Reserving the right of the petitioners 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 skj True copy P.A. to Judge