IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 Bail Appl..No. 8022 of 2011 CRIME NO.82 OF 2005 OF ADHUR POLICE STATION, KASARAGOD. SC.61/2006 of ASSISTANT SESSIONS COURT, KASARAGOD PETITIONERS: ACCUSED NOS.1 AND 2: -------------------- 1. HASSAINAR, AGED 30 YEARS, S/O.ABDUL KHADER, MASTHIKUNDU, MULIYAR POST, KASARAGOD TALUK AND DISTRICT. 2. FAISAL, AGED 24 YEARS, S/O.ABDUL KHADER, MASTHIKUNDU, MULIYAR POST, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.S.JIJI RESPONDENT: STATE: --------------- STATE OF KERALA, REPRESENTED BY RANGE OFFICER, ADHUR POLICE STATION, KASARAGOD DISTRICT, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 8022 OF 2011 ------------------------------------------------------ Dated this the 28th day of September, 2011 O R D E R The petitioners are accused Nos.1 and 2 in Crime No.82 of 2005 of Adhur Police Station, Kasaragod District, which is now pending as S.C.No.61 of 2006 on the file of the Assistant Sessions Court, Kasaragod. The petitioners apprehend arrest in execution of a non-bailable warrant issued by the Assistant Sessions Court and, therefore, they have filed this application for anticipatory bail. 2. It is stated in paragraph 8 of the Bail Application thus: “8. The matter is now pending as S.C.No.61/2006 on the file of the ASSISTANT SESSION'S COURT, Kasaragod. The trial of the case is now being conducted and on 20.06.2011 the prosecution evidence was closed and the case was posted for 313 statement on 29.6.2011. On that day the petitioners were absent and applied through advocate and allowed and the case was posted to 4.7.2011 and on that day also the petitioners were absent and applied. It was allowed and the case was BAIL APPL. NO.8022 OF 2011 :: 2 :: posted to 8.7.2011 but on that day also they were absent and the application for condonation was dismissed and the learned Judge issued NBW to the petitioners on 8.7.2011. Now non bailable warrant is pending against the petitioner from the above Court.” 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 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). In the facts and circumstances of the case, the Bail Application is disposed of with liberty to the petitioners to approach the Assistant BAIL APPL. NO.8022 OF 2011 :: 3 :: Sessions Court, Kasaragod to recall the warrant and to grant bail. When an application for bail is filed by the petitioners, the Assistant Sessions Court, Kasaragod shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/