IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 Bail Appl..No. 9346 of 2011() ----------------------------- LP.55/1991 of J.M.F.C.-III,TRIVANDRUM Crime No.32 of 1989 of Thumba Police Station .................... PETITIONER/3RD ACCUSED ------------------------------------------ JOHN FERNANDEZ, AGED 55 YEARS, S/O.GREGORY FERNANDEZ, HOUSE NO.75, ST.ANES LINE, PALLITHURA PO,THIRUVANANTHAPURAM. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SRI.Y.CONSTANTINE SMT.K.VIDYA SRI.RAJAN VISHNURAJ RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY THE SUB INSOPECTOR OF POLICE, THUMBA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY P.P.SRI.R.RANJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25/11/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------- B.A.No.9346 OF 2011 --------------------------------- Dated this the 25th day of November, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner apprehends arrest in execution of the non bailable warrant issued in LP No.55 of 1991 on the file of the Court of the Judicial Magistrate of the First Class-III, Thiruvananthapuram. 2. It is stated that the petitioner is the third accused in Crime No.32 of 1989 of Thumba Police Station. Due to non appearance of the petitioner, the case against him was split up and numbered as LP No.55 of 1991. Non bailable warrant was issued by the court. 3. In paragraph 2 and 3 of the Bail Application, it is stated thus: “2. It is respectfully submitted that the petitioner is absolutely innocent and he has B.A.No. 9346 OF 2011 2 never committed the offence alleged against him. Petitioner has never received any summons from the Court below and hence he could not appear before the Court below. Due to this cogent reason, the petitioner did go abroad in search of a job. After which he returned back to India and is now presently residing in India for the past several years. In the mean time, a non bailable warrant is issued by the learned Judicial First Class Magistrate, Thiruvananthapuram, in the said case. But even then, no intimation was given to the petitioner by the police. 3. It is respectfully submitted that the alleged offence had occurred in the year 1989. At the time the petitioner was working as fishermen in Kollam with his family. Now the case has been included in the Long Pending List and accordingly numbered as LP No.55/91. In that case also no information has been received by the petitioner, till recently. Due to his absence, a non bailable warrant has been issued by the learned Judicial First Class Magistrate, Thiruvananthapuram against the petitioner. If the petitioner may directly go and surrenders, as per the usual practice, the learned Judicial First Class Magistrate shall remand the petitioner, who is an old aged man of 55 years suffering from various ailments, to the Judicial Custody. This is the circumstances under which the petitioner seeks the mercy and kind indulgence of this Hon'ble Court for the redressal of his grievances by invoking the power under Section 438 of the Code of Criminal Procedure,1973.” 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 B.A.No. 9346 OF 2011 3 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. 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. cms