IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 Bail Appl..No. 5481 of 2009 -------------------------------------- [CC.NO.649/2005 OF J.F.C.M-II,HOSDRUG) .................... PETITIONER/IST ACCUSED: ---------------------------------------- K.S.STEPHEN, AGED 47 YEARS, S/O.DEVASSY, "SRUTHI", UPPILIKKAI, P.O.UPPILIKKAI, KASARAGOD DISTRICT. BY ADVS. MR.JAI GEORGE, SMT.P.K.PRIYA. RESPONDENT/ STATE: --------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING S.H.O. NILESHWAR POLICE STATION. BY PUBLIC PROSECUTOR MR. TEKCHAND. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ B.A.NO. 5481 OF 2009 ------------------------------------------ Dated 18th September 2009 O R D E R Petitioner is the first accused in C.C.649/2005 on the file of Judicial First Class Magistrate-II, Hosdurg. When a non bailable warrant was issued due to his non appearance by the learned Magistrate, this petition is filed under Section 438 of Code of Criminal Procedure for a direction to the Magistrate to enlarge him on bail. 2. Section 438 cannot be invoked when non bailable warrant was issued, consequent to the failure of the petitioner to appear before the Magistrate during trial. Remedy of the petitioner is to surrender before the concerned Magistrate and apply for regular bail. 3. I find no reason to believe that the Magistrate is unaware of the provisions of law or the decisions of this court or the Apex court or that the Magistrate will not act in accordance with law, if the petitioner surrenders and files an application for bail. In such circumstances, no direction is warranted. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.