IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 Bail Appl..No. 6498 of 2011 CP.111/2010 of J.M.F.C.,THIRUVALLA, PATHANAMTHITTA DISTRICT CRIME NO.742 OF 2009 OF THIRUVALLA POLICE STATION PETITIONERS: ACCUSED NOS.1, 2, 4 AND 5: -------------------- 1. SANCHU K.G, S/O.GOPALAKRISHNAN KAYYALAKKAKATHU VEEDU,KUTTOOR. 2. VISHAK V, S/O.VIJAYAN VALYARAYIL HOUSE, THENGELI MURI,KUTTOOR. 3. GOPI V.J, S/O.YOHANNAN VALYARAYIL HOUSE, THENGELI MURI, KUTTOOR. 4. OMANAKKUTTAN ,S/O.KUTTAYI THEKKETHIL HOUSE, POTTAMMALA, KUTTOOR. BY ADV. SRI.T.P.PRADEEP RESPONDENT: COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 6498 OF 2011 ------------------------------------------------------ Dated this the 8th day of August, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1, 2, 4 and 5 in C.P.No.111 of 2010, on the file of the Court of the Judicial Magistrate of the First Class, Thiruvalla. The petitioners apprehend arrest in execution of the non-bailable warrant issued by 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-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 BAIL APPL. NO.6498 OF 2011 :: 2 :: 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). 3. In Sukumari v. State of Kerala (2001 (1) KLT 22), it was held that Section 437 of the Code of Criminal Procedure does not create an absolute bar on the Magistrate to the grant of bail to persons accused of a non-bailable offence or in respect of offences exclusively triable by a Court of Sessions. 4. In the facts and circumstances of the case, the Bail Application is disposed of with liberty to the petitioners to approach the Court which issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioners, the learned Magistrate shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/