IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 Bail Appl..No. 8443 of 2011() ----------------------------- C.P.No.374/2011 of J.M.F.C-I,KASARAGOD .................... PETITIONERS/ACCUSED : ------------------------ 1. ARUN KUMAR M., AGED 21 YEARS, S/O.VIJAYAN, MAJAL HOUSE, MOGRAL PUTHUR P.O., KASARAGOD. 2. GURUPRASAD, AGED 19 YEARS, S/O.KARUNAKARAN, BADRADKA HOUSE, MOGRAL PUTTUR P.O., KASARAGOD. 3. SATHEESHAN, AGED 22 YEARS, S/O.VELLUNGAN, MAJAL HOUSE, MOGRAL PUTTUR P.O., KASARAGOD TALUK. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT: COMPLAINANT -------------------------- THE SUB INSPECTOR OF POLICE, KASARAGOD POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.8443 of 2011 ---------------------------------------------- Dated this the 02nd day of November, 2011 ORDER The petitioners, who are accused Nos.3, 4 and 5 in C.P.No.374 of 2011 on the file of the court of the Judicial Magistrate of the First Class-I, Kasaragod, apprehend arrest in execution of the non-bailable warrant for arrest issued by the court. Therefore, the petitioners have filed this application for anticipatory bail. 2. The offences alleged against the petitioners are under Sections 143, 147, 148, 323, 341, 324 and 308 read with Section 149 of the Indian Penal Code. 3. It is stated that during the course of investigation, the petitioners were not arrested. However, while filing the charge sheet, it was mentioned that the petitioners were absconding. The petitioners state that they did not receive any summons in C.P.No.374 of 2011, the proceedings for committal. Since the petitioners were absent, the learned Magistrate issued non-bailable warrant against the petitioners. 4. In Vineeth Somarajan @ Ambady v. State of Kerala (2009 (3) KHC 471), it was held that where non- Bail Appln.No.8443/2011 : 2 : 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). 5. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. Reserving the right of the petitioners 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