IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 Bail Appl..No. 7255 of 2009 CRIME NO.425 OF 2008 OF OCHIRA POLICE STATION, KOLLAM PETITIONER: FIRST ACCUSED: -------------------- SURESH @ AKHIL,NALLAVEETTIL PADEETTATHIL PERINGALA, KAYAMKULAM. BY ADV. SRI.RASHEED C.NOORANAD RESPONDENT: --------------- S.I.OF POLICE, KAYAMKULAM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 7255 OF 2009 ------------------------------------------------------ Dated this the 23rd day of December, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the first accused in Crime No.425 of 2008 of Ochira Police Station. 2. The offences alleged against the petitioner are under Sections 427, 506(ii), 326 and 308 read with Section 34 of the Indian Penal Code. 3. The learned counsel for the petitioner submitted that during investigation stage, the petitioner was not arrested. In the committal proceedings before the Court of the Judicial Magistrate of the First Class, Karunagappally, no summons was issued to the petitioner, submits the counsel. However, it is submitted that a non-bailable warrant is issued by the Court. Therefore, the petitioner has filed this application for anticipatory bail. 4. In Vineeth Somarajan @ Ambady v. State of Kerala B.A. NO. 7255 OF 2009 :: 2 :: (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 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 petitioner to move the Court which issued the non-bailable warrant for re-calling the warrant and for grant of bail, the Bail Application is closed. Issue certified copy of the order today itself. (K.T.SANKARAN) Judge ahz/