IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 Bail Appl..No. 6101 of 2011 CRIME NO.169 OF 2003 OF PULIKEEZHU POLICE STATION, PATHANAMTHITTA DISTRICT. APPLICANT/IST ACCUSED ----------------------------------------- THOMAS MATHAI @ KOCHU BABY, S/O.IYPE MATHAI,ITTYALIL HOUSE(THOTTUMALIL), NIRANAM WEST(P.O),THIRUVALLA TALUK. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 6101 OF 2011 ------------------------------------------------------ Dated this the 1st day of August, 2011 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.1 in Crime No.169 of 2003 of Pulikeezhu Police Station, Pathanamthitta District. After completing the investigation, final report was filed and the case was taken on file as C.C.No.847 of 2003, on the file of the Court of the Judicial Magistrate of the First Class, Thiruvalla. Since the petitioner was not available, the case against him was split up and it was re-filed as C.C.No.794 of 2009. 2. The case against accused No.2, wife of accused No.1, was tried by the trial court and she was acquitted, as per Annexure A1 judgment dated 21.11.2009. It is submitted that the de facto complainant and the accused are relatives and that there was case and counter case. It is also submitted by the learned counsel for the petitioner that the disputes between the parties were settled in the adalath. However, since Section 326 of the Indian Penal Code was involved in the case, no BAIL APPL. NO.6101 OF 2011 :: 2 :: petition for compounding could be filed. It is submitted that the learned Magistrate found that there is no evidence to arrive at a finding that the accused is guilty. 3. Learned counsel for the petitioner submits that the petitioner was working in Abudhabi and he did not get any summons in the case. 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). It was also held in that decision that the power to grant anticipatory bail can be exercised in an exceptional circumstance. BAIL APPL. NO.6101 OF 2011 :: 3 :: 5. In the present case, I do not find any exceptional circumstance to grant anticipatory bail. 6. However, taking into account the facts and circumstances of the case and also taking note of the acquittal of accused No.2, the fact that the disputes between the parties were settled in the adalath and all the attendant circumstances, I am of the view that the Bail Application can be disposed of with the following directions: The petitioner shall surrender before the Court of the Judicial Magistrate of the First Class, Thiruvalla within a period of two weeks. On such surrender and on filing an application for bail and for recalling the warrant, the learned Magistrate shall grant bail to the petitioner on such conditions as may appear to be just and reasonable to the learned Magistrate. The petitioner shall surrender his Passport before the learned Magistrate till the trial of the case is over. The learned Magistrate shall take up the case for trial expeditiously. BAIL APPL. NO.6101 OF 2011 :: 4 :: 7. The non bailable warrant issued against the petitioner shall not be executed for a period of two weeks. The Bail Application is disposed of as above. (K.T.SANKARAN) Judge ahz/