Rajesh vs State of Kerala

K.T. Sankaran, J.—This is an application for anticipatory bail u/s 438 of the Code of Criminal Procedure. The petitioner is the second accused in Crime No. 203 of 2006 of Mathilakam Police Station. Now, the petitioner is the sole accused in C.C. No. 646 of 2008, on the file of the Court of the Judicial Magistrate of the First Class, Kodungallur.

There were six accused in the case. The offences alleged against them are under Sections 143, 147, 148, 323 and 326 read with Section 149 of the Indian Penal Code.

The petitioner and the other accused were granted bail by the trial court in 2006. It is submitted by the learned Counsel for the petitioner that after the surrender of the petitioner before Court he was remanded to judicial custody and he was in jail for about fifteen days. Bail was granted thereafter. It is stated that the petitioner is a mason by profession. When he got an opportunity to go abroad, he went abroad. Now, it is stated that he has lost his job and has come back to India.

Meanwhile, the case against the petitioner was split up and the other accused persons were tried and they were acquitted by the judgment dated 10.7.2008. It is also submitted by the learned Counsel that the State has not filed any appeal challenging the acquittal, but the de facto complainant has filed a Revision challenging the acquittal. The Revision is pending.

Now the case against the petitioner is numbered as C.C. No. 646 of 2008 (LPR. No. 301 of 2008), on the file of the Court of the Judicial Magistrate of the First Class, Kodungallur. Non-bailable warrant was issued by the learned Magistrate. Petitioner apprehends arrest in execution of the non-bailable warrant. Therefore, he has filed this application for anticipatory bail.

In Vineeth Somarajan 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, the remedy of the accused is to file an application for withdrawal of the warrant and for the grant of bail. 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 taking into account the principles laid down in Biju v. State of Kerala 2007(2) KLT 280.

Learned Counsel for the petitioner submits that the petitioner is prepared to produce his passport before the court below to show his bona fides.

Leaving open the right of the petitioner to move the court which issued the warrant, the Bail Application is disposed of. It is made clear that when such an application for withdrawing the warrant and for the grant of bail is filed by the petitioner, the same shall be considered by the learned Magistrate keeping in mind the facts and circumstances of the case and also the decisions referred to above.