IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 Bail Appl..No. 967 of 2010 CRIME NO.111 OF 2002 OF MALAPPURAM POLICE STATION PETITIONER: ACCUSED NO.2: -------------------- SAIDALAVI, S/O.ABDULLA, NARAPATTAKARUPE HOUSE, MELMURI, MALAPPURAM. BY ADV. SRI.P.S.ABDUL KAREEM SRI.O.ABDUL HAFEELU RESPONDENT: COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 967 OF 2010 ------------------------------------------------------ Dated this the 5th day of March, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.2 in Crime No.111 of 2002 of Malappuram Police Station. The Bail Application does not contain any details as to what transpired after registration of the crime. 2. The learned Public Prosecutor submitted that the petitioner was accused No.2 in the crime. After completing investigation, charge sheet was filed and the case was taken on file as C.C.No.300 of 2002, on the file of the Court of the Judicial Magistrate of the First Class, Malappuram. Accused Nos.1 and 3 stood trial. Accused No.1 was convicted and accused No.3 was acquitted. The petitioner was absconding. The case against him was split up and it was refiled as C.C.No.998 of 2005. In spite of the issuance of non- bailable warrant, the presence of the petitioner could not be secured and the case is now treated as long pending, assigning number as L.P.No.70 of 2006, on the file of the Court of the Judicial Magistrate B.A. NO. 967 OF 2010 :: 2 :: of the First Class, Malappuram. The non-bailable warrant is pending against the petitioner. 3. 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). 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 ahz/