IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 Bail Appl..No. 234 of 2010() ---------------------------- CP.206/2009 of J.M.F.C. , KARUNAGAPPALLY CR NO.121/2005 OF KARUNAGAPPALLY EXCISE RNAGE .................... PETITIONER : ACCUSED ------------------------------------ PRASANNA, W/O.JANARDHANA, JIJI BHAVANAM, MEMANA MURI, OACHIRA VILLAGE KARUNAGAPPALLY. BY ADV. SRI.S.SUDHEESHKAR RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE, KARUNAGAPPALLY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.234 of 2010 --------------------------------------------- Dated this the 25th day of January, 2010 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in C.R.No.121 of 2005 of Karunagappally Excise Range. 2. The offence alleged against the petitioner is under Section 8(1) & (2) of the Abkari Act. 3. The prosecution case is that on 8.9.2005, the petitioner was found in possession of 10 litres of arrack. After completing the investigation, charge sheet was filed before the court of the Judicial Magistrate of the First Class, Karunagappally where it is now pending as C.P.No.206 of 2009. It is stated that the petitioner was not arrested at the crime stage. After filing the charge sheet, the petitioner did not receive any summons. At the same time, it is submitted that a non bailable warrant is pending against the petitioner. 4. In Vineeth Somarajan @ Ambady vs. State of Kerala (2009(3) KHC 471), it was held that in cases where non bailable warrant is issued by the court on account of non BA No.234/2010 2 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 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 learned Magistrate has jurisdiction to grant bail even in respect of an offence exclusively triable by a court of Sessions. 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