IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 1297 of 2010()
1. SHAJI, S/O.HANIFA, OUNNAVELIKADAYIL,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI. K.SHAJ
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :15/03/2010
O R D E R
K.T.SANKARAN, J.
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B.A.No.1297 of 2010
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Dated this the 15th day of March, 2010
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.3 in Crime No.763 of 2005 of Adoor Police Station.
2. The crime was registered for the offences under
Sections 323, 324, 341 and 379 read with Section 34 of the
Indian Penal Code. The learned counsel for the petitioner
submitted that subsequently Section 379 IPC was deleted.
3. The petitioner states that he was not arrested during
the crime stage. After filing the charge sheet, it is stated that
the petitioner received summons, but he could not appear as he
was employed outside Kerala. The case against the petitioner
was split up and it was treated as long pending case. It was
numbered as L.P.No.24 of 2008 on the file of the court of the
Judicial Magistrate of the First Class, Adoor. Non bailable
warrant was issued against the petitioner. The petitioner
apprehends arrest in execution of the non bailable warrant and
BA No.1297/2010 2
therefore, he has approached this Court under Section 438 of the
Code of Criminal Procedure.
4. In Vineeth Somarajan @ Ambady vs. State of
Kerala (2009(3) KHC 471), it was held that in cases where
non bailable warrant is issued by the court, 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 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.
K.T.SANKARAN,
JUDGE
csl