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. 7433 of 2009() ------------------------------------- CRIME NO. 71/2008 OF EXCISE RANGE WADAKKANCHERRY ........................................ PETITIONER/2ND ACCUSED: ------------------------------------------ KUTTAN @ SUNDARAN, S/O.BHASKARAN, KIZHAKKEKKARA HOUSE, KUMBALANGADU, KANJIRAKKODE, WADAKKANCHERRY. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT/COMPLAINANT: --------------------------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA REPRESENTING THE EXCISE INSPECTOR, WADAKKANCHERY RANGE. BY SRI. V. TEKCHAND PUBLIC PROSECUTOR 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. 7433 of 2009 ------------------------------------ Dated this the 15th day of December, 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 accused No.2 in C.P. No. 123/2009 on the file of the Court of the Judicial Magistrate of the First Class, Wadakkancherry. 2. The offence alleged against the petitioner is under Section 8(1)(2) of the Abkari Act. 3. It is stated that the petitioner was not arrested during crime stage as he had met with an accident and sustained grievous injuries. The final report was filed in the case. C. P. No. 123/2009 is pending before the Court of the Judicial Magistrate of the First Class, Wadakkancherry. It is stated that the petitioner received summons directing him to appear on 18.11.2009. It is further stated that he could not appear as he was hospitalised. An application to condone his absence was filed. It is stated that the application was rejected and non bailable warrant was issued. The petitioner apprehends arrest in execution of the non bailable warrant. B.A. No. 7433 of 2009 2 4. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009 (3) KLT 576] it was held that in cases where non bailable warrant is issued by a court, the person against whom the warrant is issued has to approach the court which issued the warrant and to apply for recalling the warrant and for the grant of bail. In such circumstances, normally, the accused cannot straight away approach this court with a petition under Section 438 of the Code of Criminal Procedure. It was also observed in Vineeth Somarajan's case that when an application for recalling the warrant and for grant of bail is filed, such application shall be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007(2) KLT 280]. 5. The learned counsel for the petitioner submits that if the petitioner appears before the learned Magistrate, it is likely that bail may be refused on the ground that the offence is triable exclusively by the Court of Sessions. The counsel pointed out that in Sukumari Vs. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 of the Code of Criminal Procedure can be exercised by the Magistrate, even in a case exclusively triable by the Court of Session. B.A. No. 7433 of 2009 3 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 ln