IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Bail Appl..No. 5939 of 2009 CRIME NO.84 OF 2001 OF EDACHERRY POLICE STATION LP.NO.29 OF 2004 OF JUDICIAL MAGISTRATE OF THE FIRST CLASS, VADAKARA, KOZHIKODE. PETITIONER/ACCUSED -------------------------------------- SURESH, S/O.SADANANDAN, KAKKAT THAZHEKUNI, ONCHIYAM-VADAKARA. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENTS: COMPLAINANT AND STATE ------------------------------------ 1. SUB INSPECTOR OF POLICE, EDACHERRY POLICE STATION. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5939 OF 2009 ------------------------------------------------------ Dated this the 22nd day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.84 of 2001 of Edacherry Police Station, Vadakara, Kozhikode, which is now pending as L.P.No.29 of 2004 on the file of the Court of the Judicial Magistrate of the First Class, Vadakara. 2. The offence alleged against the petitioner is under Section 55(a) of the Abkari Act. 3. The petitioner stated that he did not receive summons from the Court. It is also stated by him that he was not arrested during the crime stage. However, non-bailable warrant was issued by the Court. The petitioner apprehends arrest in execution of the non- bailable warrant issued against him. 4. In Vineeth Somarajan @ Ambady v. State of Kerala B.A. NO. 5939 OF 2009 :: 2 :: (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. 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). In Vineeth Somarajan's case it was further held that an application for anticipatory bail before the High Court may not be a proper remedy, since only the Court which issued the warrant would be in a position to assess the factual position and to know under what circumstances the warrant was issued and what steps were taken before issuing the non-bailable warrant. 5. 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. 6. Learned counsel for the petitioner pointed out that the petitioner had applied for passport and a passport was issued to him B.A. NO. 5939 OF 2009 :: 3 :: in the year 2002, after making due enquiry. Similarly, when the petitioner has lost his Electoral Identity Card, he had approached the police and Annexure II certificate dated 4.1.2002 was issued by the Sub Inspector of Police certifying that the loss of Identity Card is true. It is stated that if the petitioner was aware of the warrant pending against him, he would not have approached the police for such a certificate. These are all matters for the petitioner to urge before the Court while applying for re-calling the warrant issued against him. Reserving the right of the petitioner to apply before the Court for withdrawal of the warrant and for the grant of bail, this Bail Application is closed. If such an application for withdrawal of the warrant and for grant of bail is filed, the same shall be disposed of by the Court concerned in the light of the aforesaid decisions. (K.T.SANKARAN) Judge ahz/