IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 Bail Appl..No. 1261 of 2010() ----------------------------- CRIME NO.1242/06 OF KOTTARAKKARA POLICE STATION .................... PETITIONER (S): ACCUSED -------------------- RASHEER, S/O.KABEER, PANAYIL VEETTIL, ATTOORKONAM MURI, VELINALLOOR VILLAGE, KOTTARAKKARA, BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KOTTARAKKARA, POLICE STATION, KOTTARAKKARA, KOLLAM DISTRICT. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.1261 of 2010 --------------------------------------------- Dated this the 25th day of March, 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.1242 of 2006 of Kottarakkara Police Station. 2. The offences alleged against the petitioner are under Sections 326 and 308 read with Section 34 of the Indian Penal Code. 3. After completing the investigation, charge sheet was filed on 28.1.2007. It is stated that the petitioner was not arrested during the crime stage. It is stated that at the time when the charge sheet was filed, the petitioner was working abroad. It is stated that the petitioner came back to India about one month back. 4. The petitioner states that he had not received summons and he was not aware of the proceedings before the BA No.1261/2010 2 committal court. It is stated that the case against the petitioner was treated as long pending and it was numbered as L.P.No.30 of 2009 on the file of the court of the Judicial Magistrate of the First Class-I, Kottarakkara. Non bailable warrant was issued against the petitioner. The petitioner apprehends arrest in execution of the non bailable warrant. Therefore, he has filed this application for anticipatory bail. 4. In Vineeth Somarajan @ Ambady vs. State of Kerala (2009(3) KHC 471), it was held that in cases where non bailable warrant is issued by the court, 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 invoking 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 vs. State of Kerala (2007(2) KLT 280). 5. In Sukumari v. State of Kerala (2001 (1) KLT 22) BA No.1261/2010 3 it was held that the Magistrate has jurisdiction to grant bail even in respect of an offence exclusively triable by a court of Session. 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 csl