IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 Bail Appl..No. 8174 of 2011() ----------------------------- L.P.No.22 of 2010 in CC.263/2009 of ADDL.C.J.M.,TRIVANDRUM .................... PETITIONER : ACCUSED : --------------------------- RONNIE,S/O.BAHULEYAN, NEAR KEEZHATTINGAL VILLAGE OFFICE, LEKSHMIVILASOM,NEW RESIDING NEAR VILAYIL MOOLA JUNCTION,KOCHU KRISHNAVILASOM, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.SHAJIN S.HAMEED RESPONDENT: STATE -------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, PETTAH POLICE,REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.REJI JOSEPH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.8174 of 2011 ---------------------------------------------- Dated this the 13th day of October, 2011 ORDER The petitioner apprehends arrest in execution of a non- bailable warrant issued in L.P.No.22 of 2010 in C.C.No.263 of 2009 on the file of the court of the Additional Chief Judicial Magistrate, Thiruvananthapuram. It is stated that he is accused No.2 in the case and that the case against him was split up after the first accused pleaded guilty. 2. In paragraph Nos.2 and 3 of the Bail Application it is stated as follows:- “2. It is submitted that the petitioner is innocent of the allegations. The petitioner was unaware of the proceedings till recently. The petitioner did not receive any summons from the court. In the meanwhile the 1st accused appeared and before the court below and pleaded guilty and thereby he was convicted. The proceedings against the petitioner was split up and refiled. It is submitted that the offence alleged against the petitioner is the offence under section 411 of IPC. It is submitted that the petitioner purchased the motorbike from the 1st accused believing the same to Bail Appln.No.8174/2011 : 2 : be that of the 1st accused. The petitioner was unaware that the 1st accused has stolen the motorbike. 3. At any rate the detention of the petitioner is unwarranted, because the investigation of the case is already completed. The petitioner is not an absconder. On the other side he is a cancer patient who is undergoing treatment at Regional Cancer Centre, Trivandrum. It is submitted that the petitioner is ready to face the trial and prove his innocence and therefore the detention of the petitioner is unwarranted.” 3. 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 Bail Appln.No.8174/2011 : 3 : (2007 (2) KLT 280) and also taking note of the averments in paragraph Nos.2 and 3 of the Bail Application quoted above. 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 skj True copy P.A. to Judge