IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 Bail Appl..No. 1215 of 2010 C.C.NO.364 OF 2009 ON THE FILE OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS , CHALAKUDY PETITIONER/ACCUSED -------------------------------------- DAISON,S/O.DAVIS, MALIAKKAL HOUSE, KODAKARA VILLAGE, KANAKAMALA. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.SALIM P.A. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1215 OF 2010 ------------------------------------------------------ Dated this the 19th day of March, 2010 O R D E R The petitioner apprehends arrest in execution of the non- bailable warrant issued in C.C.No.364 of 2009, on the file of the Court of the Judicial Magistrate of the First Class, Chalakudy. Therefore, the petitioner has filed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure. 2. The offence alleged against the petitioner is under Section 27(1)(e)(iii) and (iv) of the Kerala Forest Act. It is stated that accused Nos.1, 2, 5 and 6 were tried for the offence and as per the judgment dated 30.3.2009 in C.C.No.1561 of 2005, they were acquitted. Accused No.3 died. The case against the petitioner, who was accused No.4, was split up and it was re-filed as C.C.No.364 of 2009. 3. In Vineeth Somarajan @ Ambadi 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, B.A. NO. 1215 OF 2010 :: 2 :: 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). 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 ahz/