IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 Bail Appl..No. 8831 of 2011 CC.NO.2184/2009 OF J.F.C.M - VI, ERNAKULAM PETITIONER : ACCUSED --------------------------- SHIJIMON S., SHIJI MANZIL, MAMKAMUZHY P.O., VETTIYAR, MAVELIKKARA TALUK, ALAPUZHA DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA REPRESENTING THE SUB INSPECTOR OF POLICE, MAVELIKKARA POLICE STATION, ALAPPUZHA DISTRICT. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 8831 OF 2011 ------------------------------------------------------ Dated this the 23rd day of November, 2011 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 sole accused in C.C.No.2184 of 2009, on the file of the Court of the Judicial Magistrate of the First Class VI, Ernakulam. The offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act. The petitioner apprehends arrest in execution of a non-bailable warrant issued by the Court. The Bail Application is filed in these circumstances. 2. In paragraph 3 of the Bail Application, it is stated thus: “3. It is submitted that the accused had appeared through the counsel and the case was posted for evidence on 27.09.2010. Thereafter the case was stand posted to 11.11.2010, 18.12.2010, 10.03.2011, 16.04.2011, 29.04.2011. All these posting dates the accused represented through his counsel. On 29.04.2011, there was no sitting and the case was stand BAIL APPL. NO. 8831 OF 2011 :: 2 :: posted on 04.05.2011. However on 04.05.2011, when the case was called, neither the accused nor the counsel could appear in time and the learned Magistrate cancelled the exemption given to him under section 205 of the Code of Criminal Procedure and issued NBW against the petitioner. Thereafter the case was posted on 15.06.2011 and that day the case was adjourned to 15.11.2011.” 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 closed with liberty to the petitioner to approach the Court which BAIL APPL. NO. 8831 OF 2011 :: 3 :: issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioner, the learned Magistrate shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/