IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 Bail Appl..No. 7794 of 2009() ----------------------------- CRIME NO.97/2000 OF KODUNGALLUR POLICE STATION SC.1126/2008 of ADDL.ASST. SESSIONS COURT, IRINJALAKUDA .................... PETITIONER (S): ACCUSED NO.3 -------------------------------------------- MAHESH, S/O.JOSEPH CHERAMANTHURUTHU HOUSE P.O.KOTTAPPURAM KODUNGALLUR. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT(S): COMPLAINANT ---------------------------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA REPRESENTING THE S.I. OF POLICE, KODUNGALLUR. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAMEDAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.7794 of 2009 --------------------------------------------- Dated this the 23rd day of December, 2009 ORDER 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.97 of 2000 of Kodungallur Police Station. 2. The offences alleged against the petitioner are under Sections 143, 147, 148, 323, 324, 326, 307 and 149 of the Indian Penal Code. 3. The petitioner states that he appeared before the committal court and he was released on bail. After committal of the case to the Sessions Court, the petitioner was directed to appear on 16.3.2009. He had gone abroad and therefore, he could not appear. The counsel for the petitioner appeared and applied for excusing the absence of the petitioner. The Sessions Court did not allow that prayer. Non bailable warrant was issued against the petitioner. It is stated that all the other accused were tried and they were acquitted. The petitioner has now come back to India. He apprehends arrest in execution of BA No.7794/2009 2 the non bailable warrant issued by the Sessions Court. Therefore, this Bail Application is filed. 4. In Vineeth Somarajan @ Ambady vs. State of Kerala (2009(3) KHC 471), it was held that in cases 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 invoking 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 vs. 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 csl