IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 Bail Appl..No. 6321 of 2011() ----------------------------- CRIME NO.64/2011 OF KATTAKADA EXCISE RANGE THIRUVANANTHAPURAM DISTRICT. PETITIONER/ACCUSED : --------------------- PUSHPAM, ROADARIKATHU VEEDU, ANTHIYOORKONAM NEYYATTINKARA,THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SARIN RESPONDENT: --------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.6321 of 2011 ---------------------------------------------- Dated this the 09th day of August, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The Petitioner is the accused in Crime No.64 of 2011 of Kattakada Excise Range. 2. The offence alleged against the petitioner is under Section 8(1) and (2) of the Kerala Abkari Act. 3. The petitioner apprehends arrest in execution of the non-bailable warrant issued by the court of the Judicial Magistrate of the First Class, Kattakada and therefore he has filed this application for anticipatory bail. 4. The learned Public Prosecutor submitted that after completing the investigation, charge sheet was laid on 15/06/2011 before the court of Judicial Magistrate of the First Class, Kattakada. 5. 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 Bail Appln.No.6321/2011 : 2 : 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). 6. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. 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 skj