IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 Bail Appl..No. 8765 of 2011() ----------------------------- LP.93/2007 of J.M.F.C.-I, PERINTHALMANNA CRIME NO.25/2003 OF KOLATHUR POLICE STATION MALAPPURAM DISTRICT .................... APPLICANT :2nd ACCUSED : ------------------------ HUSSAIN.P. S/O.MUHAMMED KUNHU HAJI PAROTTIL HOUSE, PUZHAKKATTIRI KADUNGAPURAM, MALAPPURAM DISTRICT. BY ADV. SRI.P.VENUGOPAL (1086/92) SRI.VIPIN NARAYAN RESPONDENT: ------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (REPRESENTING S.I. OF POLICE, KOLATHUR) PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/10/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.8765 of 2011 ---------------------------------------------- Dated this the 21st day of October, 2011 ORDER The petitioner apprehends arrest in execution of a non- bailable warrant in L.P.No.93 of 2007 on the file of the court of the Judicial Magistrate of the First Class-I, Perinthalmanna and therefore he has filed this application for anticipatory bail. It is stated that the petitioner was the second accused in Crime No.25 of 2003 of Kolathur Police Station. The case was committed to the Sessions Court and it was tried as S.C.No.153 of 2004 before the Additional Sessions Court (Adhoc-I), Manjeri. However, during the committal proceeding, the petitioner was absent and therefore his case was not tried before the court. It is also stated that the Sessions Court acquitted the other accused. Accused No.4 died in the meanwhile. The petitioner states that he was working abroad and he could not appear before the court. 2. 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- Bail Appln.No.8765/2011 : 2 : 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 skj