IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 Bail Appl..No. 7998 of 2011 CRIME NO.403 OF 2007 OF MANJESWARAM POLICE STATION C.C.NO.400 OF 2010 (LPC.NO.47 OF 2010), CJM COURT, KASARAGOD PETITIONER: -------------------- BARAK @ ABDUL RAHMAN MUBARAK, S/O.M.A.ABOOBACKER, 25/07, MARAK MAJIL, OPP. SAW MILLM KADAMBAR, KADAMBA GRAMAM, KASARAGOD DISTRICT. BY ADV. SRI.P.A.ABDUL JABBAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. S.I.OF POLICE, MANJESWARAM POLICE STATION, MANJESWARAM, KASARAGOD DISTRICT - 676 323. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 7998 OF 2011 ------------------------------------------------------ Dated this the 28th day of September, 2011 O R D E R The petitioner apprehends arrest in execution of a non-bailable warrant issued by the Court of the Chief Judicial Magistrate, Kasaragod in C.C.No.400 of 2010, which is now pending as L.P.Case No.47 of 2010. 2. It is stated that the petitioner was the second accused in C.C.No.144 of 2008, on the file of the Court of the Chief Judicial Magistrate, Kasaragod. The petitioner states that he did not receive any summons in the case. The petitioner was working abroad. The case against the petitioner was split up and, as per Annexure A1 judgment, the other accused persons were acquitted. The case against the petitioner was refiled as C.C.No.400 of 2010 and on his non-appearance, the case was treated as L.P.Case No.47 of 2010. The Court issued non-bailable warrant for the arrest of the petitioner. 3. In Vineeth Somarajan @ Ambady v. State of Kerala (2009 (3) KHC 471), it was held that where non-bailable warrant is BAIL APPL. NO.7998 OF 2011 :: 2 :: 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 disposed of with liberty to the petitioner to approach the Court of the Chief Judicial Magistrate, Kasaragod to recall the warrant and to grant bail. When an application for bail is filed by the petitioner, the Court of the Chief Judicial Magistrate, Kasaragod shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/