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. 9317 of 2011() ----------------------------- LP.55/1991 of J.M.F.C.-III,TRIVANDRUM CRIME NO.32/1989 OF THUMBA POLICE STATION THIRUVANANTHAPURAM DISTRICT .................... PETITIONER/4TH ACCUSED : ------------------------- YOHANNAN GOMEZ, S/O.SEBASTIAN,HOUSE NO.48,PALLITHURA PO, THIRUVANANTHAPURAM. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SRI.Y.CONSTANTINE SMT.K.VIDYA SRI.RAJAN VISHNURAJ RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY THE SUB INSPECTOR OF POLICE, THUMBA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.9317 of 2011 ---------------------------------------------- Dated this the 29th day of November, 2011 ORDER The petitioner states that he is the fourth accused in Crime No.32 of 1989 of Thumba Police Station. He apprehends arrest in execution of a non-bailable warrant issued by the court of the Judicial Magistrate of the First Class, Thiruvananthapuram in L.P.No.55 of 1991. The petitioner states that the offence alleged against him is under Section 307 read with Section 34 of the Indian Penal Code. 2. In paragraphs 3 to 5 of the Bail Application, it is stated thus:- 3. It is respectfully submitted that the alleged offence had occurred in the year 1989. At the time the petitioner was working as fishermen in Kollam with his family. Now the case has been included in the Long Pending List and accordingly numbered as L.P.No.55/91. In that case also no information has been received by the petitioner, till recently. Due to his absence, a Non Bailable warrant has been issued by the learned Judicial First Class Magistrate, Thiruvananthapuram against the petitioner. If the petitioner may directly go and Bail Appln.No.9317/2011 : 2 : surrenders, as per the usual practice, the learned Judicial First Class Magistrate shall remand the petitioner, who is an old aged man of 95 years, to the Judicial Custody. This is the circumstances under which the petitioner seeks the mercy and kind indulgence of this Hon'ble Court for the redressal of his grievances by invoking the power under Section 438 of the Code of Criminal Procedure, 1973. 4. It is respectfully submitted that recently the Respondent came to the house of the petitioner and created a chaotic scene there and enquired as to where the petitioner was. On enquiring, one of the Police constables told the relatives of the petitioner that there was a Non Bailable Warrant pending against the petitioner. At this time only, the petitioner came to know about the pendency of such a case before the learned Judicial First Class Magistrate, Thiruvananthapuram. On hearing this, the relatives of the petitioner had made an enquiry at the police station and came to know that it was in nexus with a crime which had occurred in the year 1989. There were a total of four accused in the said crime. Out of which 2 accused have been expired. The petitioner is the accused No.4 in the Crime No.32/91 of Thumba Police Station. For long period of 22 years, the petitioner has not received any summons from any law enforcing authority. The petitioner is totally unaware of any of the proceedings in nexus with the Crime No.32/91 of Thumba Police Station. Bail Appln.No.9317/2011 : 3 : 5. It is respectfully submitted that the Petitioner is an old aged person, suffering from various ailments. He is the Pirushathi of the Church. Now he is unable to go for work and is mostly bedridden due to various ailments. He requires the help of another person at all times to even perform his daily needs. He is barely living through the helping hands of the various relatives and neighbours. The Petitioner did not receive any summons issued by the Hon'ble Court and hence he could not appear before the court below. Consequently, a Non bailable arrest warrant has been issued by the court below against the Petitioner and now the said Non Bailable warrant is pending against the Petitioner. Petitioner is ready and willing to appear before the Court below and seek regular bail on any day, as this Hon'ble court may deem fit. But the usual practice of the Judicial First Class Magistrate Court, Thiruvananthapuram is that unless there is a positive direction from this Hon'ble Court, the absconding accused will be sent to the jail, as a punitive step”. 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 Bail Appln.No.9317/2011 : 4 : 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 court 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 skj