IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Bail Appl..No. 6809 of 2009() ----------------------------- CP.223/2009 of J.M.F.C.-I,KASARAGOD CR NO.11/2008 OF EXCISE RANGE, BANDADUKKA .................... PETITIONER/ACCUSED: ------------------------------------- KRISHNA NAYAK, S/O.BAIRU NAIK, RAMANADKA, MANIMOOLA, BANDADKKA VILLAGE, KASARAGOD. BY ADV. SRI.T.G.RAJENDRAN SRI.T.R.TARIN RESPONDENT(S): COMPLAINANT/STATE: --------------------------------- 1. THE EXCISE RANGE OFFICER, BANDADKKA, KASARAGOD. 2. STATE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.6809 of 2009 --------------------------------------------- Dated this the 15th day of December, 2009 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in C.P.No.223 of 2009 of Bandadukka Excise Range. 2. The offence alleged against the petitioner is under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 14.7.2008, the petitioner was found in possession of 8 litres of arrack. 4. The learned Public Prosecutor submitted that after completing the investigation, charge was laid in the case on 12.10.2009. Now, the case is pending as C.P.No.223 of 2009 before the court of the Judicial Magistrate of the First Class-I, Kasaragod. It is stated that the court below has issued a non bailable warrant to arrest the petitioner. The petitioner apprehends arrest in execution of the warrant. Therefore, he has filed this application for anticipatory bail. 5. It is contended by the learned counsel appearing for the petitioner that the petitioner was not involved in the offence and the case is of a mistaken identity. This question need not be BA No.6809/2009 2 decided in an application for anticipatory bail. 6. 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 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). In Sukumari vs. State of Kerala (2001(1) KLT 22), it was held that power under Section 437 of the Code of Criminal Procedure can be exercised by the Magistrate even in a case which is exclusively triable 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 csl