High Court Kerala High Court

Shamal.R.K vs State Of Kerala on 10 February, 2010

Kerala High Court
Shamal.R.K vs State Of Kerala on 10 February, 2010
       

  

  

 
 
  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.
             ------------------------------------------------------
              B.A. NOS.7689, 7690 & 7691 OF 2009
             ------------------------------------------------------
            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

:: 2 ::

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

:: 3 ::

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

:: 4 ::

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/