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. 6103 of 2009 C.C.NO.402 OF 2008 ON THE FILE OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, ETTUMANOOR. PETITIONERS/ACCUSED --------------------------------------- 1. JOJI MATHEW @ ABY S/O. MATHEW 'GANGOTHRI' HOUSE, THAVALAKKUZHY ETTUMANOOR, KOTTAYAM. 2. JOSUKUTTY, S/O. MATHEW, MANNARATHU HOUSE, AKALAKKUNNAM VADAKKUM BHAGOM, KOTTAYAM. BY ADV. SRI.SIRAJ KAROLY RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA REP. BY 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. 6103 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 C.C.No.402 of 2008, on the file of the Judicial Magistrate of the First Class, Ettumanoor. 2. The offences alleged against the petitioners are under Sections 498A and 109 read with Section 34 of the Indian Penal Code. 3. The petitioners appeared before the trial court and they were released on bail. The learned counsel for the petitioners submits that thereafter on two occasions, the petitioners could not appear. Though an application was filed to condone the absence of the petitioners, the court below was not inclined to accept the same. Non-bailable warrant was issued against the petitioners. Now the petitioners apprehend arrest in execution of the warrant. 4. In Vineeth Somarajan @ Ambady v. State of Kerala B.A. NO. 6103 OF 2009 :: 2 :: (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. 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). Leaving open the right of the petitioners to move the Court which issued the warrant to recall the warrant and to grant bail, this Bail Application is closed. If an application is filed before the Court which issued the non-bailable warrant for recalling 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. (K.T.SANKARAN) Judge ahz/