IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 Bail Appl..No. 1406 of 2010 CRIME NO.186 OF 2007 OF KARUNAGAPPALLY EXCISE RANGE, KOLLAM PETITIONER: ACCUSED --------------------------- KRISHNAN KUTTY, S/O.NARAYANAN, AGED 49 CHEMPAKASSERRIL, THODIYOOR, VADAKKUM MURI, THODIYOOR VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1406 OF 2010 ------------------------------------------------------ Dated this the 17th day of March, 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 the accused in Crime No.186 of 2007 of Karunagappally Excise Range, Kollam District. 2. The offence alleged against the petitioner is under Section 8(1) and (2) of the Abkari Act. 3. The prosecution case is that on 13.1.2007, the petitioner was found transporting 1.5 litres of arrack. On seeing the Excise party, he abandoned the arrack and ran away. The petitioner could not be arrested. The learned Public Prosecutor submitted that, after completing investigation, charge sheet was filed on 25.11.2009. Now the matter is pending as C.P.No.337 of 2009 on the file of the Court of the Judicial Magistrate of the First Class, Karunagappally. A non-bailable warrant is issued by the Court for the arrest of the B.A. NO.1406 OF 2010 :: 2 :: petitioner. The petitioner apprehends arrest in execution of the non- bailable warrant. Therefore, he has filed this application for anticipatory bail. 4. 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, 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). 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. B.A. NO.1406 OF 2010 :: 3 :: 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/