IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 Bail Appl..No. 5865 of 2009 CRIME NO.359 OF 2008 OF KUNNAMANGALAM POLICE STATION PETITIONERS/ACCUSED --------------------------------------- 1. SHAREEF.B.K., S/O. MOHAMMED, VALLIPOKKIL HOUSE, KODIYATHUR.P.O., MUKKAM, KOZHIKODE. 2. NOUSHAD.A.M., S/O. ALIKUTTY, VEERANKUDAVATH, KODIYATHUR.P.O., MUKKOM, KOZHIKODE. 3. KAMALUDEEN.M. S/O. KUTTYHASSAN, MOOZHIKKAL, KODIYATHUR.P.O., MUKKAM, KOZHIKODE. 4. FASALURAHMAN.C., S/O. CHEKUTTY, CHAKKUNGAL HOUSE, KODIYATHUR.P.O., MUKKAM, KOZHIKODE. 5. MUHAMMED SHAKKEEB.M., S/O. BASHEER, KARAT HOUSE, KODIYATHUR.P.O. MUKKAM, KOZHIKODE. 6. FAZIL.P.V., S/O. ABDULLA, PUTHENVEETTIL KODIYATHUR.P.O., MUKKAM, KOZHIKODE. BY ADV. SRI.K.M.FIROZ RESPONDENT: COMPLAINANT -------------------------- THE STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, KUNNAMANGALAM POLICE STATION KOZHIKODE, THROUGHTHE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5865 OF 2009 ------------------------------------------------------ Dated this the 23rd day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are the accused persons in Crime No.359 of 2008 of Kunnamangalam Police Station. 2. The offences alleged against the petitioners are under Sections 143, 147, 148, 427 and 452 read with Section 149 of the Indian Penal Code. 3. After completing the investigation, charge sheet was filed in the case. Cognizance was taken and the case was numbered as C.C.No.592 of 2008, on the file of the Court of the Judicial Magistrate of the First Class, Kunnamangalam. Since the petitioners did not appear before the Court, it would appear that non-bailable warrant was issued. The petitioners apprehend arrest in execution of the non-bailable warrant. B.A. NO. 5865 OF 2009 :: 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 with the 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. Learned counsel for the petitioners submitted that the disputes between the parties were settled and, therefore, the petitioners were under the wrong impression that they need not appear before Court after receipt of summons. This resulted in the issue of non-bailable warrant against the petitioners. The petitioners also relied on Annexure A3 affidavit dated 15.6.2009, sworn to by the de facto complainant, stating that he has no grievance. These are all matters which the petitioners may submit before the Court which issued the warrant. If an application is filed before the Court B.A. NO. 5865 OF 2009 :: 3 :: which issued the non-bailable warrant for re-calling the warrant and for grant of bail, the Court shall dispose of the same in the light of the principles laid down in the aforesaid decisions. With these observations, the Bail Application is closed. (K.T.SANKARAN) Judge ahz/