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. 9464 of 2011 CP.83/2011 of J.M.F.C.-I,HOSDRUG PETITIONER : ACCUSED --------------------------- OMANA.P.R, D/O. RAMAKRISHNAN, AGED 42 YEARS, RESIDING AT THAYANNUR, THAYANNUR VILLAGE AND POST HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT: STATE -------------------- STATE OF KERALA, THROUGH THE STATION HOUSE OFFICER, AMBALATHARA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.R.RANJITH 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. 9464 OF 2011 ------------------------------------------------------ Dated this the 20th day of December, 2011 O R D E R The petitioner apprehends arrest in execution of the non- bailable warrant issued in C.P.No.83 of 2011 on the file of the Court of the Judicial Magistrate of the First Class I, Hosdurg. The committal proceedings relate to Crime No.204 of 2011 of Ambalathara Police Station, registered for the offence under Section 55(a) of the Abkari Act. 2. In paragraphs 3 and 4 of the Bail Application, it is stated as follows: “3. It is submitted with respect that the petitioner herein is falsely implicated in the above crime the petitioner never committed any such offences. The investigation of the above crime is over and police filed a final report charge sheeting the accused for the offences under sections 55(a) and (i) of the Kerala Abkari Act before the Learned Judicial First Class Magistrate's Court-I, Hosdurg. The Learned Magistrate BAIL APPL. NO.9464 OF 2011 :: 2 :: upon receipt of the final report was pleased to initiate C.P.No.83/2011 on its file. It is submitted with respect that since the police filed a final report stating that the accused is absconding the Learned Magistrate instead of issuing summons in the committal proceedings was pleased to issue a non bailable warrant against the petitioner. The police are now going to arrest the petitioner pursuant to the non bailable warrant issued by the Learned Judicial First Class Magistrate's Court-I, Hosdurg in the above case. 4. It is submitted with respect that the petitioner was not aware of the pendency of the above case till 29.10.2011, on which date, certain police personals came to the residence of the petitioner to arrest the petitioner. When enquired about, it was realized that the police came to arrest the petitioner in connection with the above case. It is submitted with respect that there are absolutely no willful latches or negligence on the part of the petitioner in not appearing before the Learned Magistrate in connection with the above case at an earlier point of time. It happened only for the reason that the petitioner was totally unaware of the pendency of the above case.” 3. In Vineeth Somarajan @ Ambady v. State of Kerala (2009 (3) KHC 471), it was held that where non-bailable warrant is BAIL APPL. NO.9464 OF 2011 :: 3 :: 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). 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/