IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 Bail Appl..No. 9873 of 2011 CR.NO.45 OF 2010 OF THIRUVALLA EXCISE RANGE, PATHANAMTHITTA. PETITIONER : ACCUSED --------------------------- APPUKUTTAN, S/O.KESHAVAN, PUTHUPARAMBIL VEEDU, CHATHANKARY MURI, PERIGERA VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.AJITH MURALI RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.R.REMA THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO.9873 OF 2011 ------------------------------------------------------ Dated this the 20th day of December, 2011 O R D E R The petitioner is the accused in C.R.No.45 of 2010 of Thiruvalla Excise Range, Pathanamthitta District. The offence alleged against him is under Section 8(1) and (2) of the Abkari Act. 2. During the crime stage, the petitioner was not arrested as he was absconding. Final report was filed in the case and the case is pending as C.P.No.22 of 2011, on the file of the Court of the Judicial Magistrate of the First Class, Thiruvalla. 3. In paragraph 3 of the Bail Application, it is stated as follows: “Now the petitioner is received the summons from the court below. Now the petitioner is ready and willing to surrender before the court below for facing trial. But he apprehend that the offence alleged is non-bailable, in BAIL APPL. NO.9873 OF 2011 :: 2 :: the event his surrendering before the court below and applying for bail his bail application will not be considered on the date of surrender, which in effect means he will has to undergo judicial custody.” 4. Learned Public Prosecutor submitted that non-bailable warrant was issued against the petitioner. The counsel submitted that the petitioner apprehends arrest in execution of the non-bailable warrant. 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 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). BAIL APPL. NO.9873 OF 2011 :: 3 :: In the facts and circumstances of the case, the Bail Application is closed with liberty to the petitioner to approach the Court which issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioner, the learned Magistrate shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/