IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 Bail Appl..No. 1661 of 2010 C.C.NO.256 OF 1997 ON THE FILE OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS II, NEYYATTINKARA. PETITIONER: ACCUSED NO.6: -------------------- T.PRASAD, S/O. TITUS, AGED 45 CHOLAMVILA VEEDU, THIRUPURAM PO NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENTS: --------------- 1. STATE OF KERALA, REP BY SUB INSPECTOR OF POLICE,POOVAR POLICE STATION THIRUVANANTHAPURAM, THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. PRABHAKARAN NAIR,KADAYAVAKKAL VEEDU THIRUPURAM PO, NEYYATTINKARA. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1661 OF 2010 ------------------------------------------------------ Dated this the 24th day of March, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.6 in C.C.No.256 of 1997 on the file of the Court of the Judicial Magistrate of the First Class- II, Neyyattinkara. 2. The offences alleged against the accused are under Sections 143, 147, 447 and 427 read with Section 149 of the Indian Penal Code. 3. The petitioner was not available before Court. The case against the petitioner was split up and refiled as C.C.No.859 of 2005. 4. As per the judgment dated 3.12.2005, the other accused persons were acquitted. 5. The petitioner states that he was not aware of the proceedings before Court. The petitioner is a photographer and he is working in Bombay. Non-bailable warrant is issued against the B.A. NO.1661 OF 2010 :: 2 :: petitioner. The petitioner apprehends arrest in execution of the non- bailable warrant. Therefore, this Bail Application is filed. 6. In Vineeth Somarajan @ Ambadi 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 (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 ahz/