IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5851 of 2009()
1. RAJU, AGED 32 YEARS,
... Petitioner
Vs
1. SUB INSPECTOR OF POLICE,
... Respondent
For Petitioner :SRI.K.V.RAMABHADRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :14/10/2009
O R D E R
K.T.SANKARAN, J.
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B.A.No.5851 of 2009
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Dated this the 14th day of October, 2009
ORDER
The petitioner apprehends arrest in Crime No.173 of 1996
of Ollur Police Station, Thrissur. There are four accused persons
in the case. It would appear that charge was laid before court in
2002. The case was taken on file as C.C.No.712 of 2002.
According to the petitioner (accused No.4), he was not served
with summons. The court of the Judicial Magistrate of First
Class – III, Thrissur split up the case against accused No.4 and
the case was treated as long pending against the petitioner.
After trial, as per the judgment dated 31st January, 2009, accused
Nos.2 and 3 were acquitted. The case against accused No.1 was
also split up.
2. Now, the petitioner apprehends arrest as a non
bailable warrant is pending against him. The petitioner submits
that he was not served with any summons. Annexure C copy of
the summons is produced to show that even according to the
report of the police constable, summons intended to be served on
BA No.5851/2009 2
accused No.4 was served on Vasu, one of his relatives. It is
submitted by the learned counsel for the petitioner that Vasu is
accused No.3 in the case.
3. In Vineeth Somarajan @ Ambadi vs. State of
Kerala (2009(3) KHC 471), it was held that in similar
circumstances, the remedy of the accused concerned is to apply
to the court which issued the warrant to recall the warrant and
apply for bail. It was also held that when such an application for
bail is filed, the same shall be dealt with in accordance with the
principles laid down in Biju vs. State of Kerala (2007(2) KLT
280). The decision in Vineeth Somarajan @ Ambadi vs. State of
Kerala refers to the decision of the Supreme Court in Bharat
Chaudhary vs. State of Bihar (2003 (8) SCC 77) wherein
the Supreme Court has held that in appropriate cases the power
under Section 438 of the Code of Criminal Procedure can be
invoked even after the charge sheet is filed in the case.
4. In the facts and circumstances of the case, it would
appear that summons was not served on the petitioner. If that is
so, on appearance of the petitioner before the learned
Magistrate, bail shall be granted to him after recalling the
BA No.5851/2009 3
warrant. If the learned Magistrate finds that summons was
served on the petitioner later, the learned Magistrate is free to
decide the question of granting bail in accordance with law.
The Bail Application is disposed of as above.
K.T.SANKARAN,
JUDGE
csl