IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 Bail Appl..No. 10269 of 2011 C.C.NO.1408 OF 2010 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT I, KASARAGOD. CRIME NO.10 OF 2009 OF MANJESWER POLICE STATION. PETITIONER/ACCUSED NO.2 ------------------------------------------- AKSHATH, S/O. JAYAKAR, AGED 22 YEARS, SRI AMMA MADUKRIPA HOUSE, GANDHI NAGAR, MUDBEDRA, D.K. DISTRICT, KARNATAKA. BY ADV. SRI.R.UDAYA KUMAR SRI.JACOB E SIMON RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (C.C. NO. 1408/2010 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KASARAGOD) PUBLIC PROSECUTOR SMT.R.REMA THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 10269 OF 2011 ------------------------------------------------------ Dated this the 12th day of December, 2011 O R D E R The petitioner apprehends arrest in execution of a non-bailable warrant issued by the Court of the Judicial Magistrate of the First Class I, Kasaragod in C.C.No.1408 of 2010. Hence, the petitioner has filed this application for anticipatory bail. 2. It is stated in paragraphs 3 and 4 of the Bail Application thus: “3. It is submitted that the petitioner has not committed any offence as alleged. The petitioner was arrested and released on bail. Thereafter the petitioner was present before the Honourable Judicial First class Magistrate Court-I, Kasaragod on 29/04/2011, which is the first posting day of C.C.No.1408/2010. Then case was posted t0 13/09/11 for framing charge on that day. Accused was not present in the court due to fracture on leg and medical certificate was produced. 4. Hence case was posted to 10/11/2011 the petitioner was absent on that day also due to the same reason. The application filed on behalf of the petitioner BAIL APPL. NO.10269 OF 2011 :: 2 :: under section 205 of Cr.P.C. was rejected and issued non-bailable warrant against the petitioner and issued notice to Sureties also.” 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 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). In the facts and circumstances of the case, the Bail Application is closed with liberty to the petitioner to approach the Court which issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioner, the BAIL APPL. NO.10269 OF 2011 :: 3 :: learned Magistrate shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/