IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 Bail Appl..No. 458 of 2010 CRIME NO.146 OF 2006 OF VADAKKEKADU POLICE STATION PETITIONER/4TH ACCUSED ------------------------------------------ NASEER.K, AGED 27 YEARS, S/O.MOHAMMED, KURRIKALAKATH HOUSE, AKALAD P.O., CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.NOUSHAD THOTTATHIL SRI.NOORJI NOUSHAD RESPONDENT: --------------- STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, CHAVAKKAD POLICE STATION, CHAVAKKAD P.O., THRISSUR DISTRICT. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 458 OF 2010 ------------------------------------------------------ Dated this the 8th day of February, 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.4 in Crime No.146 of 2006 of Vadakkekadu Police Station. 2. The offences alleged against the petitioner are under Sections 143, 147, 148, 323, 302 and 307 read with Section 149 of the Indian Penal Code. 3. The date of occurrence was on 16.4.2006. The prosecution case is that the Chairman of Chavakkad Municipality was murdered by the accused persons. After completing the investigation, charge sheet was filed in 2006. The learned Public Prosecutor submitted that accused Nos.4 and 5 were absconding. The case against them was split up and it is now pending as CP.No.20 of 2007 before the Court of the Judicial Magistrate of the First Class, Kunnamkulam. B.A. NO. 458 OF 2010 :: 2 :: 4. 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 under Section 438 of the Code of Criminal Procedure. 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). 6. The learned counsel for the petitioner submitted that the learned Magistrate would not grant bail on the ground that the case is triable exclusively by the Court of Sessions. It is also submitted that the learned Magistrate may not be inclined to go into the facts of B.A. NO. 458 OF 2010 :: 3 :: the case and that there is every likelihood of the Bail Application being rejected. These contentions cannot be considered in an application for anticipatory bail and that too after a period of nearly five years after the incident. The remedy of the petitioner is to approach the Court which issued the warrant and to apply for bail and to pray for withdrawing the warrant issued against him. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. These are all matters which are to be brought to the notice of the learned Magistrate. 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/