IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 Bail Appl..No. 57 of 2010 CC.78/2009 of J.M.F.C.-I, KOLLAM PETITIONER/2ND ACCUSED ------------------------------------------ JITHIN BABU, VIBIN VIHAR, NENMENI NORTH, MANROTHURUTH, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. RESPONDENT: COMPLAINANT -------------------------- THE SUB INSPECTOR OF POLICE, EAST KALLADA POLICE STATION, KOLLAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 57 OF 2010 ------------------------------------------------------ Dated this the 6th day of January, 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.2 in C.C.No.78 of 2009 on the file of the Court of the Judicial Magistrate of the First Class - I, Kollam. 2. It is stated that the offences alleged against the petitioner are under Sections 294(b), 323, 324 and 341 read with Section 34 of the Indian Penal Code. It is also stated that since the petitioner was absent, the case against him was split up. The petitioner also states that the case against the first accused was tried and he was convicted and sentenced. 3. Since the petitioner was not available before Court, non- bailable warrant was issued against him. The petitioner apprehends arrest in execution of the non-bailable warrant issued against him. All the offences alleged against the petitioner are bailable. B.A. NO. 57 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/