IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 Bail Appl..No. 893 of 2010 CRIME NO.303 OF 2009 OF CHADAYAMANGALAM POLICE STATION, KOLLAM PETITIONER/ACCUSED NO.1 ------------------------------------------- ABI K.JOSE,S/O.KUNJUKUNJU, THUNDIL ABI BHAVAN,PERINGALLOOR DESOM, EDAMULACKAL MURI, EDAMULACKAL 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, CHADAYAMANGALAM POLICE STATION, KOLLAM DISTRICT. PUBLIC PROSECUTOR SRI. V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 893 OF 2010 ------------------------------------------------------ Dated this the 4th day of March, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.1 in Crime No.303 of 2008 of Chadayamangalam Police Station, Kollam District, which is now pending as C.C.No.2149 of 2008, on the file of the Court of the Judicial Magistrate of the First Class II, Kottarakkara. 2. The offence alleged against the petitioner is under Section 498A read with Section 34 of the Indian Penal Code. 3. It is submitted that during the crime stage, the petitioner was not arrested. According to the petitioner, he has not received any summons. He was working abroad. Non-bailable warrant was issued by the Court. The petitioner apprehends arrest in execution of the non-bailable warrant. The learned counsel for the petitioner submitted that the disputes between the parties were settled. B.A. NO. 893 OF 2010 :: 2 :: 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, to recall the warrant and to grant bail, this Bail Application is closed. (K.T.SANKARAN) Judge ahz/