IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 Bail Appl..No. 468 of 2010 CRIME NO.280 OF 2004 OF ERUMAPETTY POLICE STATION PETITIONER/ACCUSED: --------------------------------------- SHABU, S/O.BHASKARAN, PALLISSERY HOUSE, VELOOR VILLAGE AMSOM WADAKKANCHERY, THALAPPILLY TALUK. PRESENTLY RESIDING AT AWAFI FOODSTUFFS CO.L.L.C., P.O.NO.41165, SHARJAH-U.A.E. BY ADV. SRI.SOORAJ T.ELENJICKAL RESPONDENT: --------------- STATE OF KERALA, THROUGH SUB INSPECTOR OF POLICE, ERUMAPETTY POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 468 OF 2010 ------------------------------------------------------ Dated this the 17th day of February, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.10 in Crime No.280 of 2004 of Erumapetty Police Station. 2. The offences alleged against the petitioner are under Sections 143, 147 and 188 read with Section 149 of the Indian Penal Code. 3. The learned counsel for the petitioner submitted that all the other accused were tried and they were acquitted by the Court of the Judicial Magistrate of the First Class, Wadakkanchery, as per the judgment dated 19.1.2009 in C.C.No.126 of 2005. The petitioner could not appear before Court and, therefore, the case against him was split up and it is now numbered as C.C.No.41 of 2009. It is submitted that non-bailable warrant was issued by the Court. The petitioner apprehends arrest in execution of the non-bailable warrant. B.A. NO.468 OF 2010 :: 2 :: 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 learned Magistrate 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 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 ahz/