IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 Bail Appl..No. 9634 of 2011() ----------------------------- CC.99/2006 of J.M.F.C. - I, NORTH PARAVUR CRIME NO.47/2005 OF PUTHENVELIKKARA POLICE STATION .................... PETITIONER : ACCUSED : ---------------------- ANTONY, AGED 38 YEARS, S/O.YOHANNAN, PADAYATTTI HOUSE, KAPPELAKUNNU KAROTTU KARA, PUTHENVELIKKARA VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT: --------------- STATE OF KERALA, REP.BY THE SUB INSPECTOR OF POLICE, PUTHENVELIKKARA POLICE STATION, ERANKUALM DISTRICT REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PUBLIC PROSECUTOR SMT.R.REMA THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.9634 of 2011 ---------------------------------------------- Dated this the 30th day of November, 2011 ORDER The petitioner is the second accused in C.C.No.99 of 2006 on the file of the court of the Judicial Magistrate of the First Class-I, North Paravur. He apprehends arrest in execution of a non-bailable warrant issued by the court. Therefore, he has filed this application for anticipatory bail. 2. In paragraph 3 of the Bail Application, it is stated thus:- “3. It is submitted that the petitioner appeared before the concerned magistrate court and was released on bail. The trial of the case is almost completed. The prosecution witnesses are all examined. When the case was posted for examination of the accused under Section 313 of the Code of Criminal Procedure on 23.7.2011, the petitioner could not be present before the court below as he could not get leave from his employer. The petitioner is working abroad. In fact, the petitioner had instructed his brother to request the counsel at the trial court to seek permission for recording 313 statement Bail Appln.No.9634/2011 : 2 : through lawyer. But the petitioner's brother failed to intimate the said matter to the counsel and hence the counsel did not file any such application. Hence, the learned Magistrate ordered non-bailable warrant against the petitioner by rejecting the application for condonation of the absence of the petitioner, as the learned Magistrate had no other option. The petitioner is always ready and willing to appear before the court below and file an application for recalling the non-bailable warrant and also for bail.” 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). Bail Appln.No.9634/2011 : 3 : 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 skj True copy P.A. to Judge