IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 Bail Appl..No. 6416 of 2009() ------------------------------------- CC.256/2008 of J.M.F.C., KODUNGALLUR CRIME NO. 810/2007 OF KODUNGALLUR POLICE STATION .................... PETITIONERS/ACCUSED: ------------------------------------ 1. ABDUL MAJEED, AGED 47 YEARS, S/O. KOCHU VELLAKATTPADIKKAL HOUSE, AZHIKODE VILLAGE KODUNGALLUR TALUK. 2. BHASI, AGED 44 YEARS, S/O. BAVA POOTHAMVEETIL HOUSE, MENON BAZAR, AZHIKODE VILLAGE, KODUNGALLUR TALUK. BY ADVS. SRI.T.H.ABDUL AZEEZ AND SRI.ABDUL JALEEL RESPONDENT: --------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE KODUNGALLUR THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. P.A. SALIM PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No.6416 of 2009 ------------------------------------ Dated this the 18th day of November, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are accused Nos. 14 and 15 in C.C. No. 256/2008 on the file of the court of the Judicial Magistrate of the First Class, Kodungallur. 2. The offences alleged against the petitioners are under Sections 143, 147 and 452 read with Section 149 of the Indian Penal Code and Section 3 (2) (a) of the P.D.P.P.Act. 3. The petitioners appeared in the case and they were released on bail. Subsequently they did not turn up and the case against them was split up and it was treated as a long pending case. The trial in C.C.No.256/2008 was proceeded with against the other accused and as per the judgment dated 28.02.2009, the other accused were acquitted. 4. The case against the petitioners is now numbered as C.C. 866/2009 and it is pending before the Court of the Judicial Magistrate of the First Class, Kodungallur. The court issued non B.A. No.6416 of 2009 2 bailable warrant for the arrest of the petitioners. The petitioners apprehend arrest in execution of the non bailable warrant. 5. The learned counsel for the petitioners submitted that the proceedings in the case would show that the case against the petitioners was not split up and it was stated so only in the judgment dated 28.02.2009. It is also submitted that the bail granted to the petitioners was not cancelled by the court below before the judgment was delivered. Now non bailable warrant has been issued against the petitioners. The petitioners apprehend arrest and therefore, this application for Anticipatory Bail is filed. 6. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009 (3) KLT 576] it was held that in cases where non bailable warrant is issued by a court, the person against whom the warrant is issued has to approach the court which issued the warrant and to apply for recalling the warrant and for the grant of bail. In such circumstances, normally, the accused cannot straight away approach this court with a petition under Section 438 of the Code of Criminal Procedure. It was also observed in Vineeth Somarajan's case that when an application for recalling the B.A. No.6416 of 2009 3 warrant and for grant of bail is filed, such application shall be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007(2) KLT 280]. Reserving the right of the petitioners to move the learned Magistrate for recalling the warrant and for the grant of bail, this Bail Application is closed. K.T. SANKARAN, JUDGE ln