IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 Bail Appl..No. 8819 of 2011() ----------------------------- CC.991/2009 of J.F.C.M - VI, ERNAKULAM .................... PETITIONER : ACCUSED --------------- SHIJIMON.S, SHIJI MANZIL,MAMKAMUZHY (PO) VETTIYAR,MAVELIKKARA TALUK, ALAPPUZHA DISTRICT BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,REPRESENTING THE SUB INSPECTOR OF POLICE,KURATHIKADU POLICE STATION ALAPPUZHA DISTRICT PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.8819 of 2011 --------------------------- Dated this the 14th day of November, 2011 O R D E R The petitioner is the accused in C.C.No.991 of 2009 on the file of the court of the Judicial Magistrate of the First Class – VI, Ernakulam. The offence alleged against him is under Section 138 of the Negotiable Instruments Act. 2. The petitioner apprehends arrest in execution of a non bailable warrant issued by the court. Therefore, he has filed this application for anticipatory bail. It is stated in paragraph 3 of the Bail Application thus : “3. It is submitted that the accused had appeared through the counsel and the case was posted for evidence on 4.10.2010. Thereafter, the case was posted to 19.11.2010, 28.12.2010, 19.2.2011 and 29.4.2011. All these posting dates the accused was represented through his counsel. However, on 29.4.2011, there was no posting and the case was adjourned to 4.5.2011. However, on that day when the case was BA 8819/11 2 called, neither the accused nor the counsel could appear in time and the learned Magistrate cancelled the exemption given to him under Section 205 of the Code of Criminal Procedure and issued NBW against the petitioner. Thereafter, the case was posted on 15.6.2011 and that day the case was adjourned to 15.11.2011.” 3. In Vineeth Somarajan vs. State of Kerala (2009 (3) KLT 576), it was held that when warrant is issued against the accused, his remedy is to approach the court which issued the warrant for recalling the warrant and for granting bail; and not to move under Section 438 Crl.P.C. for anticipatory bail. If the petitioner surrenders before court and moves an application for bail and for recalling the warrant, the same would be considered by the court as indicated in Vineeth Somarajan vs. State of Kerala (2009(3) KLT 576). Accordingly, the Bail Application is closed. K.T.SANKARAN JUDGE csl