IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 Bail Appl..No. 9694 of 2011() ------------------------- CP.83/2010 of J.M.F.C.,THIRUVALLA CRIME NO.82/2006 OF THIRUVALLA POLICE STATION .................... PETITIONER/ACCUSED NO.1 : ---------------------------- SAJI M.MATHEW, AGED 47 YEARS, S/O.MATHEW SIMON, MANNATTU HOUSE, KUTTAPPUZHA VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.S.MANU RESPONDENT: STATE -------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, THIRUVALLA POLICE STATION, PATHANAMTHITTA DISTRICT. (NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). STATE PROSECUTOR SRI.T.ASAF ALI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.9694 of 2011 ---------------------------------------------- Dated this the 21st day of December, 2011 ORDER Petitioner apprehends arrest in execution of a non- bailable warrant issued in C.P.No.83 of 2010 on the file of the court of the Judicial Magistrate of the First Class, Thiruvalla. The petitioner is the first accused in the case. 2. It is stated that Crime No.82 of 2006 was registered at Thiruvalla Police Station against the petitioner and others, for offences under Sections 323, 324 and 427 read with Section 34 of the Indian Penal Code. After investigation, the police filed a refer report before court. It is stated that thereafter the de facto complainant filed a protest complaint before court. 3. In paragraph Nos.4 to 7 of the Bail Application, it is stated thus:- “4. Pursuant to the Annexure A-1 report, the de facto complainant Ajimon filed a protest complaint before the Judicial First Class Magistrate's Court, Thiruvalla, alleging commission of offences punishable Bail Appln.No.9694/2011 : 2 : under Sections 323, 324 and 427 r/w Section 34 of Indian Penal Code and sections 3 and 4 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. A true copy of the said protest complaint dated 31-1-2007 filed by the de facto complainant Ajimon before the Judicial First Class Magistrate's Court, Thiruvalla is produced herewith and marked as Annexure A-2. 5. The learned Magistrate took cognizance of the offences and the case was taken on file as C.P.No.83 of 2010. In the proceedings, the learned Magistrate issued summons to the petitioner. But the petitioner could not appear before the court on the date of the first posting and consequently the learned Magistrate ordered issue of non-bailable warrant against the petitioner. Now the warrant is pending against the petitioner. The petitioner apprehends arrest at any time by the police, in view of the warrant issued by the court. 6. The allegations raised in the complaint are absolutely false and frivolous. On the basis of the complaint Bail Appln.No.9694/2011 : 3 : lodged by the de facto complainant, Crime No.82 of 2006 was registered on the files of Thiruvalla Police Station alleging commission of offences punishable under Sections 323,324, 427 r/w Section 34 of Indian Penal Code. In the said crime, the allegation is that on account of the animosity towards the de facto complainant, he has left the Merchants' Association and joined the Vyapari Vyavasayi Ekopana Samithi, the accused persons on 8-2-2006 at 3.00 p.m. entered into a scuffle with the de facto complainant as a result of which, he fell down and the accused No.2 hit the de facto complainant on his left chest and head by a plier and consequently he sustained injury on his ring finger and thereafter the accused Nos.1 and 2 kicked him on his back and he sustained pain on account of the same and during the said process, the de facto complainant lost his mobile phone and a sum of Rs.5,000/- and the accused thus committed the above mentioned offences. 7. The de facto complainant had no case that the petitioner or any other accused had committed any offences under Bail Appln.No.9694/2011 : 4 : section 3 and 4 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The present allegation in the private complaint is only an after thought and the same has been made with a view to harass the petitioner for wrecking vengeance.” 4. Since summons was issued to the petitioner, normally the court would have granted bail to him. However, since the petitioner did not appear, non-bailable warrant was issued by the court. 5. 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 court has to dispose of the Bail Application in the light of the Bail Appln.No.9694/2011 : 5 : principles laid down in Biju v. State of Kerala (2007 (2) KLT 280). 6. 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 skj