IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7184 of 2009()
1. SHIBU @ KOCHUCHERUKKAN
... Petitioner
Vs
1. STATE OF KERALA REP BY THE PUBLIC
... Respondent
2. STATION HOUSE OFFICER
For Petitioner :SRI.ALEXANDER GEORGE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :10/12/2009
O R D E R
K.T.SANKARAN, J.
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B.A. NO. 7184 OF 2009
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Dated this the 10th day of December, 2009
O R D E R
This is an application for anticipatory bail under Section 438 of
the Code of Criminal Procedure. Petitioner is the fifth accused in
Crime No.169 of 1997 of Anchal Police Station, which is now
pending as L.P.No.9 of 2008 in S.C.No.1389 of 2002 on the file of
the Assistant Sessions Judge, Kottarakara.
2. The offences alleged against the accused are under
Sections 363, 368 and 376 read with Section 34 of the Indian Penal
Code.
3. The case was pending as S.C.No.1389 of 2002 on the file
of the Assistant Sessions Judge, Kottarakara. The petitioner was
released on bail by the learned Sessions Judge. It is stated that the
petitioner went abroad thereafter and he came back to India only
recently. By that time, the case against the petitioner was split up
and the trial of the other accused was over. It is stated that the other
accused persons were acquitted by the learned Sessions Judge.
The case against the petitioner was treated as long pending case
and it was numbered as L.P.No.9 of 2008. It would appear that non-
B.A. NO. 7184 OF 2009
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bailable warrant was issued against the petitioner. Petitioner
apprehends arrest in execution of the non-bailable warrant.
4. 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
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 for re-calling the warrant and for
grant of bail, this Bail Application is closed.
(K.T.SANKARAN)
Judge
ahz/