IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 Bail Appl..No. 6131 of 2009 CC.927/2003 of J.M.F.C.-II,PERINTHALMANNA (LP.NO.52 OF 2009) PETITIONER-ACCUSED -------------------------------------- HAMEED, S/O.AHAMMED KUTTY HAJI, RESIDING AT MATTARA, ARAKKUPARAMBA.P.O, PERINTHALMANNA.P.O, MALAPPURAM DISTRICT. BY ADV. SRI.DEVIDAS.U.K RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, THROUGH SUB INSPECTOR, PERINTHALMANNA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6131 OF 2009 ------------------------------------------------------ Dated this the 21st day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in C.C. No.927 of 2003, on the file of the Court of the Judicial Magistrate of the First Class – II, Perinthalmanna (L.P.No.52 of 2009). 2. The offences alleged against the petitioner are under Sections 465, 468 and 419 of the Indian Penal Code and Section 12 (1)(b) of the Passport Act. 3. It is submitted that the petitioner filed Annexure C petition stating that he had entrusted the counsel to cross examine the witnesses and to represent the petitioner at all relevant times before Court and to exempt the petitioner from personal appearance. It is submitted that that application was dismissed. It is submitted by the B.A. NO. 6131 OF 2009 :: 2 :: counsel that even before Annexure C petition was filed, evidence in the case was over. However, the petitioner did not appear on the date fixed for questioning under Section 313 of the Code of Criminal Procedure. It is submitted that non-bailable warrant was issued against him. The petitioner apprehends arrest in execution of the non-bailable warrant and, therefore, he has filed this application for anticipatory bail. 4. In Vineeth Somarajan 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, the remedy of the accused is to file an application for withdrawal of the warrant and for the grant of bail. 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 taking into account the principles laid down in Biju v. State of Kerala (2007(2) KLT 280). Reserving the right of the petitioner to apply before the Sessions Court for withdrawal of the warrant and for the grant of bail, this Bail Application is closed. If such applications for withdrawal of the warrant and for grant of bail are filed, those applications shall be B.A. NO. 6131 OF 2009 :: 3 :: disposed of by the learned Sessions Judge in the light of the aforesaid decisions. (K.T.SANKARAN) Judge ahz/ The words “Sessions Court” and “Sessions Judge” mentioned in the last para of the order dated 21.10.2009 in B.A.6131/2009 are corrected and substituted as “the Court of the Judicial Magistrate of the First Class II, Perinthalmanna” as per order dated 9.11.2009 in Crl.M.A.No.6075/2009 in B.A.6131/2009.