IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 Bail Appl..No. 6886 of 2009() ----------------------------- CRIME NO.135/2000 IN CP.81/2001 of J.M.F.C.-II,HOSDRUG .................... PETITIONER/ACCUSED -------------------------------------- MUHAMMED B. ALIAS KALANDER S/O.BEERAN, RESIDING AT CHOORITHADUKKA BABRANA, KUMBALA, KASARAGOD TALUK KASARAGOD DISTRICT. BY ADV. SRI.MURUGAN P.V. RESPONDENT(S): --------------- 1. THE STATION HOUSE OFFICER VELLARIKUNDU. 2. THE CIRCLE INSPECTOR OF POLICE VELLARIKUNDU, 3. STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.AMJAD ALI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.6886 of 2009 --------------------------------------------- Dated this the 11th 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.P.No.81 of 2001 on the file of the court of the Judicial Magistrate of the First Class-II, Hosdurg which is now pending as L.P.No.31 of 2004. The case relates to Crime No.135 of 2000 of Vellarikundu Police Station. 2. The offence alleged against the petitioner is under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 7.8.2000, at 11 P.M., while the police party was on patrol duty, the accused came to the place in an ambassador car. On seeing the police party, the persons who were in the car ran away. On search of the vehicle, a quantity of 575 litres of spirit and 800 packets of arrack were found. The petitioner could not be arrested. 4. Final report was filed in the case on 20.4.2001. In spite of the fact that the final report was filed on 20.4.2001, the petitioner moved an application for anticipatory bail before this BA No.6886/2009 2 Court as Bail Application No.1524 of 2009. That Bail Application was disposed of by the order dated 21st April, 2009. The order reads as follows: “In this petition filed under Section 438 Crl.P.C. the petitioner prays for anticipatory bail. It is submitted that Vellarikundu Sub Inspector and Circle Inspector of Police are searching the petitioner for a non bailable offence and they are trying the petitioner to be arrayed as an accused for a non bailable offence. The petitioner apprehends arrest. But no crime number is stated and also the section of offence incorporated in such crime, if any. 2. The learned Public Prosecutor opposed the application. It is too early to accept the petitioner's contention that the petitioner has been falsely implicated. There is no reason why the petitioner should not surrender before the Magistrate concerned and seek regular bail. Accordingly, if the petitioner surrenders before the Magistrate concerned within two weeks from today and files and application for regular bail, the same shall be considered and disposed of on merit preferably on the same day itself. With the above observation this application is disposed of.” 5. It is stated that on 5.5.2009, the petitioner surrendered before court in compliance of the order dated 21st April, 2009 in Bail Application No.1524 of 2009. The court of the Judicial Magistrate of the First Class-II, Hosdurg passed an order dated 5th May, 2009 which reads as follows: BA No.6886/2009 3 “This is a bail application filed on behalf of the accused under Section 437 Crl.P.C. 2. As per the direction of the Hon'ble High Court of Kerala accused surrendered before this court. Order of the Hon'ble High Court of Kerala in B.A.No.1524/2009 is produced along with the Bail Application before this court. No matter is pending with Cr.No.135/00 of Vellarikundu Police Station before this court (noted from office). Hence application not entertained.” 6. It is clear that the petitioner did not disclose before this Court in Bail Application No.1524 of 2009 that the final report was filed and that he apprehended arrest in execution of a non bailable warrant. This Court evidently was under the impression that the petitioner was sought to be arrested at the crime stage. This again misled the learned Magistrate to pass the order dated 5th May, 2009 as quoted above. In fact at the time when the learned Magistrate passed the order dated 5th May, 2009, the matter was pending in C.P.No.81 of 2001 which was converted as L.P.No.31 of 2004. Even at the time of surrendering before court, the petitioner did not disclose before the court that the matter is pending as L.P.No.31 of 2004. It was the duty of the petitioner to enquire about the same and to submit the correct facts before the court. BA No.6886/2009 4 7. Now, the petitioner seeks anticipatory bail and he has filed another Bail Application for the same. The petitioner apprehends arrest in execution of a non bailable warrant issued by the court. The petitioner cannot capitalise out of his own mistake and seek for anticipatory bail in respect of a crime registered in 2000 and in respect of which C.P.No.81 of 2001 was pending in which the petitioner was declared as absconded and the case was numbered as L.P.No.31 of 2004. 8. 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 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). BA No.6886/2009 5 Leaving open the right of the petitioner to appear before court which issued the non bailable warrant and to apply for withdrawing the warrant and for granting bail, this Bail Application is closed. If an application for bail is filed, it shall be considered by the learned Magistrate in accordance with law. K.T.SANKARAN, JUDGE csl