IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 Bail Appl..No. 3927 of 2008() ----------------------------- CRMP.1729/2008 of DISTRICT COURT, PALAKKAD CP.31/2005 of J.M.F.C., PATTAMBI CRIME NO.150/05 OF CHALISSERY POLICE STATION PETITIONER/ ACCUSED ------------------------------------ SURA @ SURESH, S/O.SIVASANKARAN NAMBIAR, ONGANATTUTHUMBAKATHIL HOUSE, PERINGANNUR, OTTAPALAM, PALAKKAD DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: STATE ------------------ THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHALISSERY POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 3927 of 2008 ----------------------------------------- Dated this the 23rd day of June, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 143, 147, 148, 341, 324 and 308 read with 149 of Indian Penal Code. Petitioner is the first accused in the crime. He was granted anticipatory bail by this Court and accordingly the petitioner appeared before the lower court and he was released on bail. But, later, he could not appear before the lower court on receipt of summons and hence, non bailable warrant is issued against the petitioner and he apprehends arrest. 3. Learned counsel for petitioner submitted that the petitioner's absence was not wilful or deliberate. It was only due to the reasons beyond his control. He was forced to go abroad to eke his livelihood, especially since he has three sisters of marriage age. Two sisters were given in marriage and in such circumstances, he could not appear in court. Learned counsel for petitioner also submitted that in the peculiar circumstances of this case, this court may grant anticipatory bail. On a reading of Section 438 of Code of BA.3927/08 2 Criminal Procedure, I find that anticipatory bail can be granted only in cases where the petitioner apprehends arrest “on accusation of a non bailable offence”. The arrest which is apprehended in this case is not because he is accused of an offence. He was granted bail when he was facing apprehension of arrest on accusation of a non- bailable offence. He was released on bail also. 4. But, at present, petitioner's arrest is required only on account of a lawful order, issued by a competent court, since he violated the order of the court and he was absent during the proceedings pending before the trial court. Since the petitioner is required for arrest for execution of a non bailable warrant, which is lawfully issued by a competent court, this court is reluctant to exercise the discretionary jurisdiction under Section 438 Cr.P.C. If petitioner's contentions are true and he could not appear due to the reasons beyond his control, he can seek his remedy before the lower court itself. This order will not stand in the way of his obtaining bail from the lower court, especially since it is submitted that the entire matter has been settled between the parties as evidenced by Annexure-A. With the above observations, this petition is dismissed. K.HEMA, JUDGE vgs.