IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 Bail Appl..No. 8990 of 2011 ---------------------------------- L.P.C.NO.71/2010 OF THE SESSIONS COURT, KASARAGOD SC.383/2008 OF THE ASSISTANT SESSIONS JUDGE, KASARAGOD .......................................................... (S): PETITIONER/3RD ACCUSED ------------------------------------------ MOHAMMED HANEEF @ SADIQUE, S/O.MOOSA, BATTERI HOUSE,SHIRIYA PO, KASARAGOD DISTRICT BY ADVS. SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH SRI.SHIJI.P.M. RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31 BY PUBLIC PROSECUTOR SRI.R.RANJITH. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: STU K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.8990 of 2011 ---------------------------------------------- Dated this the 11th day of November, 2011 ORDER The petitioner is the accused in Sessions Case No.383 of 2008 on the file of the court of the Assistant Sessions Judge, Kasaragod. It is stated that originally the case was numbered as S.C.No.562 of 2005 and the case against the petitioner was split up and it was numbered as L.P.C.No.71 of 2010. Bail was granted to the petitioner. Thereafter, the case was re- numbered as S.C.No.383 of 2008. On 22/05/2010, the petitioner was absent before court. He filed an application for exemption from appearance. That application was dismissed and non-bailable warrant was issued against the petitioner. It is stated that the case against the petitioner has been transferred to the Long Pending Case Register as L.P.C.No.71 of 2010. The petitioner stated in paragraph No.2 of the bail application thus:- “2. The petitioner most humbly submits that he was unemployed person he got a menial job in the gulf country. Therefore in order to take up the job, he had to leave to gulf country as without a job he could not maintain his large family. It was under these compelling circumstances that the petitioner could not appear in court.” Bail Appln.No.8990/2011 : 2 : 2. The petitioner apprehends arrest in execution of the non-bailable warrant issued by the court and therefore he has filed this application for anticipatory bail. 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 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