IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 Bail Appl..No. 301 of 2010 LP.39/2006 of J.M.F.C.-II,NEYYATTINKARA CRIME NO.95 OF 2001 OF THIRUVALLOM POLICE STATION PETITIONER/IST ACCUSED ------------------------------------------ KANNAN @ NISSAR, S/O.ABUBAKER, AGED 37, T.C.NO.53/1347, MARICHEENIVLA VEEDU, PONNUMANGALAM, NEMOM, THIRUVANANTHAPURAM. BY ADV. SRI.THIRUMALA P.K.MANI RESPONDENTS: --------------- 1. S.I OF POLICE, THIRUVALLAM POLICE STATION. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 301 OF 2010 ------------------------------------------------------ Dated this the 25th day of January, 2010 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.1 in Crime No.95 of 2001 of Thiruvallom Police Station. 2. The offences alleged against the petitioner are under Sections 55(a) and (b), 8(1) and (2) and 58 of the Abkari Act and Sections 416 and 120B of the Indian Penal Code. 3. During investigation stage, the petitioner was not arrested. After completing the investigation, charge sheet was filed. It is stated that the petitioner did not receive any summons. The case against the petitioner was split up and it was treated as long pending case assigning number as L.P.No.39 of 2006, on the file of the Court of the Judicial Magistrate of the First Class II, Neyyattinkara. Non- bailable warrant is issued against the petitioner. Petitioner apprehends arrest in execution of the non-bailable warrant. B.A. NO. 301 OF 2010 :: 2 :: 4. 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). 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/