IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 Bail Appl..No. 384 of 2010 CRIME NO.371 OF 2001 OF KARUNAGAPPALLY POLICE STATION LP.NO./128 OF 2008 IN C.P.NO.200 OF 2002 OF JFMC, KARUNAGAPPALLY PETITIONER/3RD ACCUSED ------------------------------------------ SHIHABUDEEN, S/O. ABDUL SALAM, POCHAYIL VADAKKATHIL, KADATHOOR MURI, THAZHAVA VILLAGE, KARUNAGAPPALLY TALUK. BY ADV. SRI. K.SIJU SRI.A.MUHAMMED RAFFI RESPONDENT: STATE -------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KARUNAGAPPALLY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 384 OF 2010 ------------------------------------------------------ Dated this the 4th day of February, 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.3 in Crime No.371 of 2001 of Karunagappally Police Station, which is now pending as C.P.No.200 of 2002 on the file of the Court of the Judicial Magistrate of the First Class, Karunagappally. 2. The offence alleged against the petitioner is under Section 436 read with Section 34 of the Indian Penal Code. 3. The learned counsel for the petitioner submitted that during the crime stage, the petitioner was not arrested and he was not aware of the proceedings before Court. It would appear that after filing the final report, since the petitioner did not appear, the case was treated as long pending as against him. Non-bailable warrant is pending against the petitioner. The petitioner apprehends arrest in execution of the non-bailable warrant. Therefore, this Bail Application is filed. B.A. NO.384 OF 2010 :: 2 :: 4. It is submitted that the final report shows that accused No.3 is Navas, S/o.Abdul Salam. The petitioner is Shihabudeen, S/o.Abdul Salam. The counsel points out that this itself shows that the petitioner was not served with summons in the case. Learned Public Prosecutor submitted that after filing the final report, the name of accused No.3 was altered as Navas @ Shihabudeen as per a report submitted by the investigating officer. 5. 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). B.A. NO.384 OF 2010 :: 3 :: 6. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. 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/