IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 Bail Appl..No. 922 of 2010() ---------------------------- C.R.NO.16/2007 OF EXCISE RANGE OFFICE, THRISSUR .................... PETITIONER/ACCUSED NO.1 ------------------------------------------- SATHEESH, AGED 29 YEARS, S/O.SUBRAMANIYAN, BHARATHARAMI DESOM, V.S.PURAM VILLAGE, GUDIYATHAM TALUK, VELLOOR DISTRICT, TAMILNADU. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, THRISSUR REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.922 of 2010 --------------------------------------------- Dated this the 23rd day of February, 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.1 in C.P.No.49 of 2009 on the file of the court of the Judicial Magistrate of the First Class-III, Thrissur. 2. The offence alleged against the petitioner is under Section 55(a) of the Abkari Act. 3. The learned counsel for the petitioner submitted that at the crime stage, the petitioner was granted default bail as per the order dated 20th July 2007 in Bail Application No.4395 of 2007. It is submitted that thereafter he did not receive any summons after final report was filed in the case. Now, non bailable warrant is issued against him. The petitioner apprehends arrest in execution of the non bailable warrant. Therefore, he has filed this application for anticipatory bail before this Court. 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 on account of non BA No.922/2010 2 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 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). 5. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the learned Magistrate has jurisdiction to grant bail even in respect of an offence exclusively triable by a court of Session. 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