IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 Bail Appl..No. 9060 of 201 1 C.P.NO.34 OF 2011 ON THE FILE OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, THIRUVALLA. PETITIONER/ACCUSED: --------------------------------------- CHANDRAN, AGED 55 YEARS, S/O.NARAYANAN VANCHIKKAPUZHA VEETTIL, OTHARA EAST MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT: COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, THIRUVALLA EXCISE RANGE, PATHANAMTHITTA DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.T.K.RENJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 9060 OF 2011 ------------------------------------------------------ Dated this the 31st day of October, 2011 O R D E R The petitioner apprehends arrest in execution of a non-bailable warrant issued by the Court of the Judicial Magistrate of the First Class, Thiruvalla in C.P.No.34 of 2011. Therefore, he has filed this application for anticipatory bail. 2. It is stated that the offence alleged against the petitioner is under Section 55(i) of the Abkari Act. The petitioner was not arrested during the crime stage. It is submitted that in lieu of the summons, non-bailable warrant was issued by the Court. The petitioner states that if he surrenders before Court, he will be remanded to judicial custody. 3. 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 BAIL APPL.NO.9060 OF 2011 :: 2 :: 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). 4. In Sukumari v. State of Kerala (2001 (1) KLT 22), it was held that Section 437 of the Code of Criminal Procedure does not create an absolute bar on the Magistrate to the grant of bail to persons accused of a non-bailable offence or in respect of offences exclusively triable by a Court of Sessions. In the facts and circumstances of the case, the Bail Application is closed with liberty to the petitioner to approach the Court which issued the warrant to recall the warrant and to grant bail. When an application for bail is filed by the petitioner, the learned Magistrate shall consider the same in the light of the principles laid down in Vineeth Somarajan's case. (K.T.SANKARAN) Judge ahz/