IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 Bail Appl..No. 5533 of 2011() ----------------------------- CR NO.114/2008 OF EXCISE RANGE KARUNAGAPPALLY, KOLLAM PETITIONER/ACCUSED : -------------------------------------- CHELLAMMA, D/O.NANI, AGED 60, MANIMANGALATHU HOUSE, CLAPPANA VILLAGE, KARUNAGAPPALLY TALUK. BY ADV. SRI.K.R.SUNIL RESPONDENT/COMPLAINANT: -------------------------- THE EXCISE INSPECTOR, KARUNAGAPPALLY EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY SRI TEKCHAND, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jma K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.5533 of 2011 ---------------------------------------------- Dated this the 13th day of July, 2011 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.114 of 2008 of Excise Range, Karunagappally, which is now pending as C.P.No.140 of 2009 on the file of the Court of the Judicial Magistrate of the First Class, Karunagappally. 2. The offence alleged against the petitioner is under Section 8 (1) & (2) of the Abkari Act. 3. It is submitted that the learned Magistrate issued non-bailable warrant for the arrest of the petitioner. The learned counsel for the petitioner submitted that in Annexure-A1, mahazar, it is stated that the petitioner could not be arrested as no woman police constable was available. 4. The learned counsel for the petitioner submits that thereafter a charge sheet was laid, in which it was stated that the petitioner was absconding. The counsel submitted that only because of such a statement in the final report, the learned Magistrate issued non-bailable warrant against the Bail Appln.No.5533/2011 : 2 : petitioner. The counsel also submitted that the petitioner is aged 60 years. 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 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). If such an application is filed by the petitioner, the learned Magistrate shall consider the same in the light of the principles laid down in the aforesaid decisions. 6. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. Bail Appln.No.5533/2011 : 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 skj