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. 9111 of 2011() ----------------------------- ST.3186/2009 of J.M.F.C.-I,KANNUR PETITIONER/ACCUSED : ---------------------- K.V.RUDRA KUMAR, AGED 52 YEARS, S/O.KANDAN VELAYUDHAN, NO.15 & 16, SURYAKANTHI STREET, MUTHU NAGAR, BHARATHEEYAR UNIVERSITY POST, COIMBATORE-46. BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENTS : STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.K. MANOHARAN, S/O. BALAN NAMBIAR, KANARATH HOUSE, NOW RESIDING AT KORJAN BUILDING, TALAP, PALLIKUNNU POST, KANNOOR-670004. 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.9111 of 2011 ---------------------------------------------- Dated this the 02nd day of November, 2011 ORDER The petitioner, who is the accused in S.T.No.3186 of 2009 on the file of the court of the Judicial Magistrate of the First Class-I, Kannur, apprehends arrest in execution of a non- bailable warrant issued by the court. 2. The offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act. 3. It is submitted that the case was posted for cross- examination of the complainant on 13/09/2011. On that day, the complainant was absent and the case was adjourned to 13/10/2011. On 13/10/2011, the petitioner could not appear before court as he had left the station on getting information that his sister was seriously ill. It is submitted that the sister of the petitioner died on that day, namely, 13/10/2011. However, since the petitioner was absent, the learned Magistrate issued non-bailable warrant against the petitioner after cancelling the order granting exemption to the petitioner from appearing. In these circumstances, the petitioner apprehends arrest. Bail Appln.No.9111/2011 : 2 : 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 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. However, it is to be noted that the sister of the petitioner died on 13/10/2011, the date on which the case was posted. In these circumstances, I am of the view that it is necessary to grant bail to the petitioner on his appearance before the learned Magistrate. Accordingly, the Bail Application is disposed of as follows: If the petitioner surrenders before the court of the Judicial Magistrate of the First Class-I, Kannur, within the Bail Appln.No.9111/2011 : 3 : period of two weeks from today and move for recalling the warrant and for the grant of bail, the learned Magistrate shall grant bail to the petitioner on such conditions as may appear to the learned Magistrate as just and proper. K.T.SANKARAN, JUDGE skj