IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7689 of 2009()
1. SHAMAL.R.K, SON OF R.K.KUMARAN VAIDYAR,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.K.MOHANAKANNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :10/02/2010
O R D E R
K.T.SANKARAN, J.
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B.A. NOS.7689, 7690 & 7691 OF 2009
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Dated this the 10th day of February, 2010
O R D E R
These are applications for anticipatory bail under Section 438
of the Code of Criminal Procedure. The petitioner, Shamal R.K.,is
an accused in Crime Nos.176, 177 and 178 of 2003 of Kannur Town
Police Station.
2. The offences alleged against the petitioner in Crime No.176
of 2003 are under Sections 143, 147, 148, 151, 332, 333, 353, 452,
435 and 307 read with Section 149 of the Indian Penal Code and
Section 3(1) of the PDPP Act. In Crime Nos.177 and 178 of 2003, it
is submitted that the offence under Section 3(1) of the PDPP Act is
not included but the other offences alleged are almost the same.
3. The petitioner submits that since he was not available in
India, the cases against him were split up. The cases against the
other accused were committed to the Sessions Court. It is submitted
that applications were submitted by the Public Prosecutor before the
Sessions Court for withdrawal from prosecution in all the three
B.A. NOS. 7689, 7690 & 7691 OF 2009
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cases. Those applications were allowed and the accused persons
were discharged under Section 321(a) of the Code of Criminal
Procedure, as per the order dated 16.10.2007. Annexure I produced
along with B.A.No.7689 of 2009 shows that there are 271 accused
persons in Crime No.176 of 2003.
4. The petitioner came to India recently. His marriage was to
be solemnized on 26.12.2009. In these circumstances, he filed the
applications for anticipatory bail. As per the interim orders dated
21.12.2009, directions were issued not to arrest the petitioner in
connection with the aforesaid three crimes till 10.1.2010, on
condition that the petitioner shall surrender his passport before the
investigating officer within a period of one week. It was also
mentioned in the orders dated 21.12.2009 that the learned
Magistrate will be free to pass appropriate orders either for the
retention or for the release of the passport, when such question
arises in future.
5. As stated earlier, the cases against the petitioner were split
up and now the cases against him are pending as LP.Nos.128, 141
and 142 of 2005, on the file of the Court of the Judicial Magistrate of
B.A. NOS. 7689, 7690 & 7691 OF 2009
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the First Class I, Kannur. Non-bailable warrant was issued by the
learned Magistrate. The petitioner apprehends arrest in execution of
the non-bailable warrant.
6. The learned counsel for the petitioner submitted that since
the prosecution has withdrawn from the prosecution, nothing
remains and that the cases cannot be proceeded against the
petitioner. It is not necessary to consider that question in these Bail
Applications. That question is left open to be considered at the
appropriate stage and in appropriate proceedings.
7. 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
B.A. NOS. 7689, 7690 & 7691 OF 2009
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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. When an application for bail is
filed, the learned Magistrate shall taken note of the withdrawal from
prosecution and the fact that several accused persons were involved
in the cases and that the cases were withdrawn in 2007.
(K.T.SANKARAN)
Judge
ahz/