IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 Bail Appl..No. 5759 of 2009() ---------------------------------------- CP.280/2007 of J.M.F.C.-I,NEYYATINKARA CRIME NO.26/90 OF NEMOM POLICE STATION, THIRUVANANTHAPURAM. .................... PETITIONER/15 th ACCUSED: ----------------------------------- BASHEER, AGED 41 YEARS S/O.MOHAMMED MOIDEEN, MMJ HOUSE,THOZHUPPURA VEEDU NEW KARAKKAMANDAPAM,THIRUVANANTHAPURAM. BY ADV. SRI.THIRUMALA P.K.MANI RESPONDENTS/COMPLAINANT: ---------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, NEMOM POLICE STATION, THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. SRI.TEKCHAND, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON13/10/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 5759 of 2009 ------------------------------------ Dated this the 13th day of October, 2009 O R D E R The petitioner has filed this application under Section 438 of the Code of Criminal Procedure for the grant of anticipatory bail, apprehending arrest in execution of non-bailable warrant issued by the Judicial Magistrate of the First Class-I, Neyyattinkara in C.P. No. 280/2007. The crime was registered in 1990 for the offence under Sections 143, 147, 148, 149, 447, 427, 324 and 307 read with Section 149 of the Indian Penal Code. The petitioner is the accused No.15. The petitioner did not appear before court. The case against him was split up in the year 2007 and it was treated as long pending case. In the year 2007 itself, non bailable warrant was issued against the petitioner. The petitioner could not be arrested. According to him, he was working abroad and he came to know about the matter only a few days before. According to the petitioner, he was not aware of the proceedings before the court. That is a matter to be established by acceptable materials. The learned counsel for the petitioner submitted that going by the decision of the Supreme Court in Bharat Chaudhary Vs. State of Bihar [2003(8) SCC 77], the B.A. No. 5759 /2009 2 application under Section 438 of the Code of Criminal Procedure is maintainable. 2. In Vineeth Somarajan @ Ambadi Vs. State of Kerala, it was held, after considering the decision in Bharat Chaudhary, that in cases where non-bailable warrant was issued by the court, normally the accused has to appear before that court and apply for withdrawal of the warrant. He can also apply for bail. The court which issued the warrant would be able to effectively consider whether the reasons stated by the petitioner are proper and correct, justifying the withdrawal of the warrant. In such circumstances, normally, a person would not be entitled to straightway approach High Court by filing a petition under Section 438 of the Code of Criminal Procedure. It was also held that if an application for bail is filed, the same has to be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007(2) K.L.T. 280]. Reserving the right of the petitioner to move for withdrawal of the warrant and for the grant of bail before the court which issued the warrant, this Bail Application is closed. K.T. SANKARAN, JUDGE scm