IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 Bail Appl..No. 6392 of 2009 -------------------------------------- (CRIME NO.227/2009 OF KADACKAL POLICE STATION) .................... PETITIONER/ACCUSED: ---------------------------------- RAJENDRA PRASAD @ IRAN, AGED 58 YEARS, S/O.RAMAKRISHNAN, JALAJA MANDIRAM, CHITHARA MURI, CHITHARA, MANGODU, KADACKAL VILLAGE, KOTTARAKKARA. BY ADV. MR.ALEXANDER GEORGE. RESPONDENTS/COMPLAINANT/STATE: --------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATION HOUSE OFFICER, KADACKAL POLICE STATION, KADACKAL, KOLLAM DISTRICT. R1 & R2 BY PUBLIC PROSECUTOR MR. M.S. BREEZ. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. K.T. SANKARAN, J. --------------------------- B.A. No. 6392 of 2009 ------------------------------------ Dated this the 5th day of November, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused no. 2 in Crime No. 227/2009 of Kadackal Police Station which is now pending as C.P.No.70/09 on the file of the Court of Judicial Magistrate of the First Class - II, Kottarakara. 2. The offence alleged against the petitioner is under Sections 55 (a) and (i) of the Abkari Act. 3. After completing the investigation, charge was laid in the case on 27.05.2009. It is submitted that at the crime stage, the petitioner was not arrested. The petitioner contends that he has not received any summons from the Court. However, a non bailable warrant is now issued by the Court to arrest the petitioner. The petitioner apprehends arrest in execution of the warrant. Hence he has filed this application for Anticipatory Bail. 4. In Vineeth Somarajan @ Ambadi vs. State of Kerala (2009(3) KHC 471), it was held that when non bailable B.A. No. 6392 of 2009 2 warrant is issued by a Court, normally, the accused is not entitled to file an application under Section 438 of the Code of Criminal Procedure seeking Anticipatory Bail. His remedy is to approach the Court which issued the warrant and pray to recall the warrant and to grant bail. It was also held that when such application for bail is filed, the Court shall consider the same in the light of the principles laid down in Biju vs. State of Kerala (2007(2) KLT 280). In Sukumari vs. State of Kerala (2001(1)KLT 22), it was held that the Magistrate has jurisdiction to grant bail in a case involving a session offence. Leaving open the right of the petitioner to move the Court which issued the warrant for the aforesaid relief, this Bail Application is closed. K.T. SANKARAN JUDGE kkms/