IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 Bail Appl..No. 5619 of 2011() ----------------------------- CP.32/2011 of J.M.F.C., KODUNGALLUR CRIME NO.130/2011 OF VALAPAD POLICE STATION .................... PETITIONER/ACCUSED NO.13 ---------------------------- SUDHEESH, AGED 21 YEARS, S/O.SETHUMADHAVAN, KOZHIPARAMBIL HOUSE, MUNAYAM DESOM, EDATHIRUTHY VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.G.PRAMOD RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY SUB-INSPECTOR OF POLICE, VALAPAD POLICE STATION, THRISSUR DISTRICT THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.5619 of 2011 ---------------------------------------------- Dated this the 15th day of July, 2011 ORDER The petitioner apprehends arrest in execution of the non- bailable warrant issued by the Judicial Magistrate of the First Class, Kodungallur. in C.P.No.32 of 2011. Therefore, the petitioner has approached this Court under Section 438 of the Code of Criminal Procedure. 2. Crime No.130 of 2011 of Valapad Police Station was registered against the petitioner and others. The petitioner is accused No.13. The case is now pending as C.P.No.32 of 2011 on the file of the court of the Judicial Magistrate of the First Class, Kodungallur. Due to the non- appearance of the petitioner, it would appear that warrant was issued for the arrest of the petitioner. 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 Bail Appln.No.5619/2011 : 2 : 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). 4. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. 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 skj