IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 Bail Appl..No. 8902 of 2011() ----------------------------- SC.363/2009 of ADDL.DISTRICT COURT (ADHOC)-IV, TRIVANDRUM CRIME NO.58/1999 OF KAZHAKUTTOM EXCISE RANGE .................... PETITIONER : ACCUSED: -------------------- ANIL KUMAR, S/O.SUDHAKARAN, MUDAPURA DESOM, VILAYIL VEEDU, KEEZHUVALAM, CHIRAYINKEEZHU. BY ADV. SRI.SHAJIN S.HAMEED RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR KAZHAKUTTOM EXCISE RANGE, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.T.K.RENJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.8902 of 2011 ---------------------------------------------- Dated this the 25th day of October, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.58 of 1999 of Kazhakuttom Excise Range, which is now pending as L.P.No.01 of 2011 in S.C.No.363 of 2009 on the file of the Court of the Additional District & Sessions Judge, Fast Track (Adhoc) No.IV, Thiruvananthapuram. 2. The offence alleged against the petitioner is under Section 8(1) & (2) of the Kerala Abkari Act. 3. In paragraphs 2 and 3 of the Bail Application, it is stated thus: “2. After completing the final report the investigating officer submitted the final report. The learned magistrate accepted the final report and issued summons to the petitioner. He appeared before the court and after serving the copy of the final report, the case was committed to the Sessions Court. 3. The petitioner did not receive any summons from the Sessions Court. Finally when he came to know that warrant was issued against him, Bail Appln.No.8902/2011 : 2 : so he surrendered before the court below on 3/04/2009 and he was released on bail. From 4/05/2009 to 12/05/2010 there was no sitting at the court below. So the case was adjourned on notification. In the meanwhile the petitioner got employment abroad. The petitioner is the sole bread winner for his family. So he was constrained to leave the country for employment. On 31/07/2010 while the case was called for framing charge, the accused was not present. So the court below issued warrant to the petitioner. Now the proceeding against the petitioner is pending as L.P.No.1/2011 in S.C.No.363/2009 on the file of the Additional District & Sessions Judge, Fast Track (Adhoc) No.IV, Thiruvananthapuram.” 4. The petitioner apprehends arrest in execution of the non-bailable warrant and therefore he has filed this application for anticipatory bail. 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 Bail Appln.No.8902/2011 : 3 : 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 Court 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). 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 skj