IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 Bail Appl..No. 7563 of 2009 CRIME NO.67 OF 2007 OF PULPALLY POLICE STATION, WAYANAD PETITIONER: 3RD ACCUSED: ------------------------------ JAYASREE, W/O.ASHOK KUMAR, AGED 34 YEARS, "GOKULAM", KUDALLUR.P.O, PALAKKAD DISTRICT. BY ADV. SMT.DAISY A.PHILIPOSE RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 7563 OF 2009 ------------------------------------------------------ Dated this the 16th day of December, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the third accused in Crime No.67 of 2007 of Pulpally Police Station, Wayanad District. 2. The offence alleged against the petitioner is under Section 420 read with Section 34 of the Indian Penal Code. 3. After completing the investigation, charge sheet was filed in the case. The petitioner received summons. At that time, she had approached this Court by filing Crl.M.C.No.532 of 2009 to quash the final report. Crl.M.C.No.532 of 2009 was disposed of by the order dated 4.2.2009, by which the petitioner was granted liberty to apply before the learned Magistrate for passing an order under Section 173(8) of the Code of Criminal Procedure. The petitioner appeared before the learned Magistrate and made the application. The learned Magistrate passed an order dated 24.2.2009, ordering B.A. NO. 7563 OF 2009 :: 2 :: further investigation of the case under Section 173(8) of the Code of Criminal Procedure. It would appear that, after further investigation, a report was filed by the investigating officer. 4. It is submitted by the learned counsel for the petitioner that the petitioner belongs to Palakkad District. The petitioner is working as the Postmaster of Muthuthala Post Office in Palakkad District. It is stated that the petitioner was exempted from personal appearance before the Court of the Judicial Magistrate of the First Class II, Sulthan Bathery. However, on 9.10.2009, the counsel appearing for the petitioner did not appear before Court and, therefore, non- bailable warrant was issued by the Court. The petitioner apprehends arrest in execution of the non-bailable warrant. 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 B.A. NO. 7563 OF 2009 :: 3 :: 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). 6. Learned counsel for the petitioner submitted that the petitioner was on medical leave from 1.7.2009 to 30.11.2009. It is stated that the petitioner was suffering from jaundice and typhoid. The counsel states that the petitioner is not physically fit to travel to Wayanad and appear before Court to seek for recalling the non- bailable warrant and for the grant of bail. It is submitted that the petitioner is prepared to appear before the learned Magistrate and apply for recalling the warrant and for the grant of bail. The only prayer is that the petitioner may be granted a breathing time for doing so. The submission appears to be just and reasonable. Accordingly, the petitioner is granted time up to 15.1.2010 to appear before the learned Magistrate and apply for appropriate reliefs. Till then the petitioner will not be arrested in execution of the non- bailable warrant issued by the Judicial Magistrate of the First Class- II, Sulthan Bathery in C.C.No.271 of 2008 (Crime No.67 of 2007 of Pulpally Police Station). B.A. NO. 7563 OF 2009 :: 4 :: Reserving the right of the petitioner to appear before the Court which issued the non-bailable warrant and to apply for re-calling the warrant and for grant of bail, the Bail Application is closed with the aforesaid direction not to arrest the petitioner till 15.1.2010. (K.T.SANKARAN) Judge ahz/