IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 Bail Appl..No. 3744 of 2010() --------------------------------------- CRIME NO.77/2001 OF VECHOOCHIRA POLICE STATION. ........... PETITIONER (S): -------------------- DEEPAK, S/O. SIVARAJAN, RAJEEVAM, PADA SOUTH, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, VECHOOCHIRA POLICE STATION. PUBLIC PROSECUTOR SRI.M.S.BREEZE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss K.HEMA, J. ------------------ B.A. No. 3744 of 2010 ------------------------------------ Dated this the 29th day of June, 2010 O R D E R Petition for anticipatory bail. 2. The alleged offences are under Sections 143, 144, 147, 148, 323, 324, 307 and 506(ii) read with Section 149 of the Indian Penal Code and Sections 3 and 5 of the Explosive Substances Act. According to prosecution, petitioner (A7) along with other accused, formed themselves into an unlawful assembly, armed with deadly weapons like sword stick, bombs etc. and assaulted de facto complainant and committed the various offences stated above. Bombs were also hurled in the course of the incident and the de facto complainant sustained injury and an attempt was made to commit murder. 3. Learned counsel for petitioner submitted that the offence was allegedly committed in the year 2001. Petitioner was a student at that time and he has not committed any offence. He went abroad and a charge sheet was laid in the meantime. As per the charge sheet, there is no specific allegation against petitioner. Petitioner apprehends arrest and he may be granted anticipatory bail, it is submitted. B.A. No. 3744 / 2010 2 4. Learned Public Prosecutor opposed this bail application and submitted that petitioner was granted bail at the crime stage, when he was arrested on an accusation of commission of a non bailable offence. The present apprehension of arrest is not an accusation of commission of a non bailable offence, but it is for the reason that non bailable warrant was issued against petitioner, since he failed to appear in court in breach of the bail bond executed by him. The incident occurred in 2001 and nine years elapsed, but since petitioner was absconding all these years. Hence this is not a fit case to grant anticipatory bail, it is submitted. 5. On hearing both sides, I am satisfied that the apprehension of arrest of the petitioner is not on account of his commission of a non bailable offence. But non bailable warrant was issued against petitioner, since he had violated the bail bond executed by him before the Magistrate Court and his presence is sought to be procured by for the purpose of trial and since he was absconding. A reading of Section 438 of the Code of Criminal Procedure will show that the court can invoke the power under B.A. No. 3744 / 2010 3 Section 438 of the Code of Criminal Procedure, only if a person apprehends arrest on an accusation of having committed non bailable offence. 6. Petitioner's presence is necessary for the purpose of trial and also other proceedings, since he has violated the bond executed before the trial court. In such circumstances, it may not be proper for this court to exercise the discretion under Section 438 of the Code of Criminal Procedure to grant anticipatory bail to a person, who was absconding. Section 438 of the Code of Criminal Procedure is not intended for such purpose. Petitioner may approach the trial court and seek his remedy in accordance with law. Petition is dismissed. K. HEMA, JUDGE ln