IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 6206 of 2009()
1. BINOY, S/O.PADMANABHAN, PADINCHARE
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.V.SURENDRANATH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :29/10/2009
O R D E R
K.T. SANKARAN, J.
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B.A. No. 6206 of 2009
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Dated this the 29th day of October, 2009
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.1 in Crime No.536/2008 of Panoor Police
Station, Kannur.
2. The offences alleged against the petitioner are
under Sections 143, 147, 148, 341, 324, 326 and 308 read
with Section 149 of the Indian Penal Code.
3. The petitioner states that after filing the charge
sheet, he received summons in C.P. No.32/2009 on the file
of the Court of the Additional Chief Judicial Magistrate,
Thalassery. It is stated on the date fixed for appearance, he
could not appear and an application was filed to condone his
absence. The learned Magistrate dismissed that application
and issued non bailable warrant. It is also submitted that the
case against the petitioner was split up and it is numbered as
C.P. No.46/2009. The case against other accused were
committed to the Sessions Court.
4. In Vineeth Somarajan @ Ambadi Vs. State of
Kerala [2009(3)KHC 471], it was held that in cases where
B.A. No. 6206 /2009
2
non-bailable warrant is issued by a court, normally, the accused
has to approach that court which issued the warrant and apply
for recalling the warrant and for the grant of bail. Instead of the
same, the accused cannot straightway approach the High Court
with a petition under Section 438 of the Code of Criminal
Procedure. It was also observed in Vineeth Somarajan’s case
that when such an application for withdrawing the warrant and
for the grant of bail is filed before the learned Magistrate, the
same shall be considered in the light of the principles laid down
in Biju Vs. State of Kerala [2007(2) K.L.T 280]. It is well settled
principle that even in a case where the offence is exclusively
triable by the Sessions Court, the Magistrate can grant bail by
exercising the power under Section 437 of the Code of Criminal
Procedure {Sukumari Vs. State of Kerala [2001(1) K.L.T. 22] }
Reserving the right of the petitioner to move the learned
Magistrate for recalling the warrant and for the grant of bail, this
Bail Application is closed. Needless to say that if such an
application is filed, the learned Magistrate shall consider and
dispose of the same in the light of the principles laid down in the
aforesaid decisions.
K.T. SANKARAN, JUDGE
scm