IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 Bail Appl..No. 228 of 2010() ---------------------------- CP.106/2008 of J.M.F.C.,THIRUVALLA C.R. NO. 61/2007 OF THIRUVALLA EXCISE RANGE .................... PETITIONERS/ACCUSED NOS.2 AND 3: -------------------------------------------- 1. AJESHKUMAR.N.S., AGED 41 YEARS, S/O.SADASIVAN, RADHANILAYAM HOUSE, KAVIYOOR P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT. 2. MOHANAN T.P., AGED 59 YEARS, S/O.KRISHNAN PADMANABHAN, THAYYIL HOUSE, THOTTUVATHALA P.O., KAINAKARY, ALAPPUZHA DISTRICT. BY ADV. SRI. NIREESH MATHEW RESPONDENT/COMPLAINANT: ----------------------------------- STATE OF KERALA REPRESENTED BY EXCISE INSPECTTOR, EXCISE RANGE OFFICE, THIRUVALLA, PATHANAMTHITTA DISTRICT REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. M.S. BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 228 of 2010 ------------------------------------ Dated this the 2nd day of February, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.2 and 3 in C.P. No. 106/2008 on the file of the Court of the Judicial Magistrate of the First Class, Thiruvalla, arising from C. R. No. 61/2007 of Thiruvalla Excise Range. 2. After completing the investigation, charge was laid in the case. The case is now pending as C.P. No.106/2008 on the file of the Court of the Judicial Magistrate of the First Class, Thiruvalla. It is stated that the court has issued a non bailable warrant against the petitioners. The petitioners apprehend arrest in execution of the non bailable warrant. Hence this application for anticipatory bail is filed. 3. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009 (3) KHC 471], it was held that in cases where non bailable warrant is issued by a court, the proper remedy of the accused is to approach that court which issued the warrant and to apply for recalling the warrant and for the grant of bail. It was also B.A. No. 228 of 2010 2 observed in Vineeth Somarajan's case that when such an application for bail is filed, the same has to be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007 (2) K.L.T. 280]. 4. 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 where the offence is exclusively triable by the Court of Session. Reserving the right of the petitioners 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