IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 Bail Appl..No. 1220 of 2010() ----------------------------- Cr.NO.46/07 OF HOSDURG EXCISE RANGE .................... PETITIONER/ACCUSED -------------------------------------- INDIRA, AGED 55 YEARS, W/O.KUNHIKANNAN, RESIDING AT MUNDOT, PADITHADAM, AMBALATHARA VILLAGE, HOSDURG TALUK, KASARGOD (DISTRICT). BY ADV. SMT.T.SUDHAMANI RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.1220 of 2010 --------------------------------------------- Dated this the 12th day of March, 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 the accused in Cr.No.46 of 2007 of Hosdurg 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 25.10.2007, the petitioner was found in possession of 5 litres of arrack. The petitioner states that she was not arrested as no woman police constable was available. According to the petitioner, she was available in the locality. However, she was not arrested. An absconding charge was filed by the investigating officer before the court of the Judicial Magistrate of the First Class-I, Hosdurg. A non bailable warrant was issued by the court for the arrest of the petitioner. The petitioner apprehends arrest in execution of the non bailable warrant. Therefore, she has filed this application for anticipatory bail. 4. In Vineeth Somarajan @ Ambady vs. State of BA No.1220/2010 2 Kerala (2009(3) KHC 471), it was held that in cases where non bailable warrant is issued by the court, 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 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