IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 6406 of 2009()
1. JAYAKUMAR T.B.,
... Petitioner
Vs
1. FATHIMA USMAN, W/O.USMAN,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.T.I.DANIEL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :09/11/2009
O R D E R
K.T.SANKARAN, J.
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B.A.No.6406 of 2009
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Dated this the 9th day of November, 2009
ORDER
This is an application for anticipatory bail under Section
438 of the Code of Criminal Procedure. The petitioner is the
accused in C.C.No.2559 of 2004 which is now pending as
L.P.No.83 of 2009 on the file of the court of the Judicial
Magistrate of the First Class-I, Ernakulam.
2. The offence alleged against the petitioner is under
Section 138 of the Negotiable Instruments Act.
3. The petitioner states that he did not receive summons
in C.C.No.2559 of 2004. It is stated that he went to Qatar in
2004 and he came back to India only on 23.10.2009. It is stated
that a non bailable warrant is pending against him in L.P.No.83
of 2009.
4. In Vineeth Somarajan @ Ambadi vs. 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
BA No.6406/2009 2
issued has to approach the court which issued the warrant for
recalling the warrant and for the grant of bail. He cannot,
normally, straight away approach the High Court invoking
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 vs.
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. If an application is
filed before the court, the court shall dispose of the same in the
light of the principles laid down in the aforesaid decisions.
K.T.SANKARAN,
JUDGE
csl