IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Bail Appl..No. 8844 of 2011() ----------------------------- CRIME NO.128 OF 2003 OF KURUPPAMPADY POLICE STATION, ERNAKULAM PETITIONER/ACCUSED NO.1 ------------------------------------------- RATHEESH, AGED 30, S/O.BHASKARAN, KAIVELIKKAL HOUSE, THALAYADU KARA, THAMARASSERY VILLAGE, KOZHIKODU DISTRICT. BY ADV. SRI.K.SUNILKUMAR SMT.K.S.JEENA REETHA RESPONDENT(S): COMPLAINANT -------------------------- THE STATE OF KERALA THROUGH THE S.I. OF POLICE, KURUPPAMPADY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SRI.T.K.RENJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------- B.A.No. 8844 OF 2011 --------------------------------- Dated this the 24th day of October, 2011 ORDER It is stated that the petitioner is accused No.1 in Crime No.128 of 2003 of Kuruppampady Police Station. The case was pending as S.C.No.254 of 2005, and it is stated that the case was split up and refiled as SC No.363 of 2011 as against the petitioner, and it was made over to the Additional Sessions Court (Ad hoc-II), Ernakulam. Due to non appearance of the petitioner, the court issued non bailable warrant. The petitioner apprehends arrest in execution of the non bailable warrant and therefore, this Bail Application has been filed under Section 438 of the Code of Criminal Procedure. 2. It is stated in paragraph 3 of the Bail Application thus: “3. The petitioner was appearing before the Adhoc-II Court, Ernakulam regularly up to 13.11.2006. Thereafter he has not appeared and non bailable warrant was issued against the petitioner and the case was posted to B.A.No. 8844 OF 2011 2 13.12.2006. At that time petitioner had gone abroad in connection with his job. Thereafter the case was posted to 1.2.2007, on that day the bail bond was cancelled and the notice was issued to the sureties. The 3rd accused was also absconding and the case against the petitioner and 3rd accused was split up and renumbered as SC No.46 of 2011. The accused No.2 was acquitted by the judgment dated 26.7.2008 in SC No.254 of 2005 of Adhoc-II Court, Ernakulam. Thereafter the accused No.3 surrendered before the court below and trial was conducted and he is also acquitted. The non appearance of the petitioner before the court below was not done deliberately. The petitioner is deeply regretted for the same. Now the case against the petitioner is renumbered as S.C.No.363 of 2011 and the case is posted to 25.10.2011.” 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 court has to dispose of the Bail Application in the light of the principles laid B.A.No. 8844 OF 2011 3 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, to recall the warrant and to grant bail, this Bail Application is closed. K.T.SANKARAN, JUDGE. cms