IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 Bail Appl..No. 9660 of 2011 C.C.NO.822 OF 2005 ON THE FILE OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS II, ATTINGAL CRIME NO.635 OF 2004 OF MANGALAPURAM POLICE STATION : PETITIONER : ACCUSED: ------------------------------ KISHORE, AGED 36 YEARS, S/O.RAGHUNANDHAN, KAMAL VIHAR, VELIYAM P.O., VELIYAM VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.K.V.ANIL KUMAR SRI.N.P.PRADEEP RESPONDENT: COMPLAINANT: --------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 290/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 9660 OF 2011 ------------------------------------------------------ Dated this the 29th day of November, 2011 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 accused in C.C.No.822 of 2005 on the file of the Court of the Judicial Magistrate of the First Class II, Attingal. The petitioner apprehends arrest in execution of a non-bailable warrant issued by the Court. Hence he has filed this application for anticipatory bail. 2. It is stated in the Bail Application thus: “ In the crime stage the petitioner was enlarged on bail and thereafter appeared in the trial court and when it was posted on 08.04.2011 for taking 313 statement of the petitioner/accused, the petitioner went abroad for his compelled circumstance of his livelihood. Due to his absence the court below issued NBW against him and now the case posted on 23.11.2011. The petitioner has no criminal history.” 3. In Vineeth Somarajan @ Ambady v. State of Kerala BAIL APPL. NO. 9660 OF 2011 :: 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. 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). In the facts and circumstances of the case, the Bail Application is closed with liberty to the petitioner to approach the Court which issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioner, the learned Magistrate shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/