IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Bail Appl..No. 6439 of 2009() ----------------------------- CC.215/2008 of J.M.F.C.-II, ALUVA CRIME NO.65/2007 OF KALAMASSERY POLICE STATION .................... PETITIONERS/ACCUSED 5, 9, 10, 12, 15, 18 AND 20 ------------------------------------------------------------------ 1. ANEESH JOSEPH, AGED 20, S/O.JOSEPH, MOONGANKUZHIYIL, NEAR MANKULAM SCHOOL, KALAMASSERRY. 2. ANNAMMA PHILIP, AGED 54, W/O.PHILIP, EDAKULAVAN, KALAMASSERRY. 3. REENA, AGED 27, D/O.ANNAMMA, EDAKULAVAN, KALAMASSERRY. 4. VIJAYA, AGED 38, W/O.SELVAKUMAR, DOZEN VIHAR, THYKOODAM, VYTTILA. 5. BAIJU, AGED 22, S/O.PAPPACHAN, NEERANAKUDIYIL, PERUMBAVOOR. 6. ANTHAPPAN GEORGE, AGED 70, S/O.GEORGE, THOTTIYIL, A.K.G.ROAD, EDAPPALLY. 7. BOSE, AGED 30, KALATHILPARAMBIL, UDYOGAMANDAL, ELOOR. BY ADV. SRI.JOSEPH GEORGE RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE S.I OF POLICE, KALAMASSERY POLICE STATION, ERNAKULAM DISTRICT BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6439 OF 2009 ------------------------------------------------------ Dated this the 30th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are accused Nos.5, 9, 10, 12, 15, 18 and 20 in C.C.No.215 of 2008, on the file of the Court of the Judicial Magistrate of the First Class – II, Aluva. They apprehend arrest in execution of the non-bailable warrants issued against them. 2. It is stated that charge sheet was filed in the case and summons were issued to the accused, fixing the date of appearance on 12.8.2009. It is submitted that the petitioners were not served with summons, but non-bailable warrants were issued against them. They apprehend arrest. It is stated that the petitioners are prepared to appear before Court and seek for bail. Their apprehension is that they will be detained in judicial custody. 3. In Vineeth Somarajan @ Ambady v. State of Kerala (2009 (3) KHC 471), it was held that where non-bailable warrant is B.A. NO. 6439 OF 2009 :: 2 :: 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 with the 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 petitioners to apply for regular bail, this Bail Application is disposed of. (K.T.SANKARAN) Judge ahz/