IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 Bail Appl..No. 9241 of 2011() ----------------------------- CC.1226/2007 of J.M.F.C.-II,ATTINGAL CRIME NO.412 OF 2007 OF KILIMANOOR POLICE STATION, THIRUVANANTHAPURAM DT. .................... PETITIONERS/ACCUSED NOS. 1 TO 3 --------------------------------------------------- 1. PRAKASH, S/O. SANKARAN, MANKUNNU VILAYIL VEEDU, VELLALLOOR DESOM AND VILLAGE. 2. SHAJI, S/O. NADESAN, SHEELA BHAVAN, KAIRALI JUNCTION, VELLALOOR VILLAGE. 3. LIGI, D/O. SATHYABHAMA, SHEELA BHAVAN,KAIRALI JUNCTION,VELLALOOR VILLAGE. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): STATE AND COMPLAINANT ------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KILIMANOOR POLICE STATION. BY P.P.SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------- B.A.No.9241 OF 2011 --------------------------------- Dated this the 8th day of November, 2011 ORDER The petitioners apprehend arrest in execution of the non bailable warrant issued in C.C.No.1226 of 2007 on the file of the Court of the Judicial Magistrate of the First Class-II, Attingal. It is stated that the offence alleged against the petitioners is under Section 420 read with 34 of the Indian Penal Code. 2. In paragraph 3 of the Bail Application, it is stated as follows: “The 2nd respondent did not arrest the petitioners during the crime stage and submitted the final report showing the petitioners as absconding accused. The learned Magistrate taken cognizance of the case as C.C.No.1226 of 2007. Now the learned Magistrate issued summons to the petitioners but the same was not served on the petitioners. But it was reported as served on the petitioners and hence the learned Magistrate issued warrant against B.A.No. 9241 OF 2011 2 the petitioners.” 3. 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 principles laid down in Biju v. State of Kerala (2007(2) KLT 280). Reserving the right of the petitioners 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. cms