IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 Bail Appl..No. 7184 of 2009 CRIME NO.169 OF 1997 OF ANCHAL POLICE STATION NOW PENDING AS LP.NO.9 OF 2008 IN SC.NO.1389/2002 ON THE FILE OF THE ASSISTANT SESSIONS JUDGE, KOTTARAKARA, KOLLAM. PETITIONER/ACCUSED -------------------------------------- SHIBU @ KOCHUCHERUKKAN S/O.RAJU, VASSAVAMANDIRAM, THETTIKULAM,CHERUNNIYOOR VILLAGE. BY ADV. SRI.ALEXANDER GEORGE RESPONDENTS: STATE/COMPLAINANT: --------------- 1. STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. STATION HOUSE OFFICER ANCHAL POLICE STATION, KOLLAM DISTRICT. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 7184 OF 2009 ------------------------------------------------------ Dated this the 10th day of December, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioner is the fifth accused in Crime No.169 of 1997 of Anchal Police Station, which is now pending as L.P.No.9 of 2008 in S.C.No.1389 of 2002 on the file of the Assistant Sessions Judge, Kottarakara. 2. The offences alleged against the accused are under Sections 363, 368 and 376 read with Section 34 of the Indian Penal Code. 3. The case was pending as S.C.No.1389 of 2002 on the file of the Assistant Sessions Judge, Kottarakara. The petitioner was released on bail by the learned Sessions Judge. It is stated that the petitioner went abroad thereafter and he came back to India only recently. By that time, the case against the petitioner was split up and the trial of the other accused was over. It is stated that the other accused persons were acquitted by the learned Sessions Judge. The case against the petitioner was treated as long pending case and it was numbered as L.P.No.9 of 2008. It would appear that non- B.A. NO. 7184 OF 2009 :: 2 :: bailable warrant was issued against the petitioner. Petitioner apprehends arrest in execution of the non-bailable warrant. 4. 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). Reserving the right of the petitioner to move the court which issued the non-bailable warrant for re-calling the warrant and for grant of bail, this Bail Application is closed. (K.T.SANKARAN) Judge ahz/