IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 Bail Appl..No. 10147 of 2011() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN BA.9064/2011 Dated 28/11/2011 CP.124/2011 of J.M.F.C., HARIPAD CRIME NO.141/2011 OF KANAKAKUNNU POLICE STATION ALAPPUZHA DISTRICT .................... PETITIONER/IST ACCUSED : ------------------------ V.N.SATHEESH KUMAR,S/O.VASAVAN, AGED 36 YEARS,DARSHANA,KUNDALOOR SOUTH.P.O, KAYAMKULAM,ALAPPUZHA DISTRICT. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY SUB INSPECTOR OF POLICE,KANAKAKUNNU POLICE STATION, ALAPPUZHA DISTRICT,THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.10147 of 2011 ---------------------------------------------- Dated this the 08th day of December, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.1 in Crime No.141 of 2011 of Kanakakunnu Police Station, Alappuzha District. 2. The offences alleged against the petitioner are under Sections 323 and 324 of the Indian Penal Code and Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The petitioner filed Bail Application No.9064 of 2011 under Section 438 of the Code of Criminal Procedure. That Bail Application dismissed holding thus:- “Since the investigation was completed and charge sheet filed, there cannot be any apprehension for the petitioner that the investigating officer would arrest him. There is also no case for the petitioner that any warrant was issued by the court. The petitioner is entitled to surrender before court at any time. The Bail Appln.No.10147/2011 : 2 : application for anticipatory bail is not maintainable. It is accordingly dismissed.” 4. It is submitted that a non-bailable warrant was issued by the Judicial Magistrate of the First Class-I, Harippad in C.P.No.124 of 2011. The petitioner apprehends arrest in execution of the non-bailable warrant. Hence, he has filed this application for anticipatory bail. 5. 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). Bail Appln.No.10147/2011 : 3 : 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 skj