IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Bail Appl..No. 5892 of 2009 CRIME NO.684 OF 2006 OF THE KARUNAGAPPALLY POLICE STATION C.P.NO.76 OF 2009 OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, KARUNAGAPPALLY. PETITIONER/ACCUSED NO.1 ------------------------------------------- THANKAPPAN, AGED 50 YEARS, S/O.AYYAPPAN, KALATHOORKIZHAKKATHIL, MANAPPALLY SOUTH MURI, PAVUMBA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5892 OF 2009 ------------------------------------------------------ Dated this the 16th day of October, 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 the first accused in Crime No.684 of 2006 of Karunagappally Police Station, which is now pending as C.P.No.76 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 55(g) and (h) of the Abkari Act. 3. It is submitted that a non-bailable warrant was issued by the Magistrate's Court. The petitioner apprehends arrest in execution of the warrant. 4. In Vineeth Somarajan 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, the remedy of the accused is to file an application for withdrawal of the warrant and B.A. NO. 5892 OF 2009 :: 2 :: for the grant of bail. 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 taking into account the principles laid down in Biju v. State of Kerala (2007(2) KLT 280). 5. 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. In the light of the aforesaid decisions, I am of the view that the remedy of the petitioner is to apply for withdrawal of the warrant and for the grant of bail. Reserving the liberty of the petitioner to do so, this Bail Application is closed. Needless to say that when the Magistrate Court is approached, the decisions referred to above shall be taken note of by the Court. (K.T.SANKARAN) Judge ahz/