IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 Bail Appl..No. 7064 of 2009 CRIME NO.203 OF 2007 OF KARUNAGAPPALLY EXCISE RANGE C.P.NO.269 OF 2009 OF JUDICIAL MAGISTRATE OF THE FIRST CLASS, KARUNAGAPPALLY. PETITIONER/ACCUSED -------------------------------------- JANAMMA, AGED 59 YEARS, D/O.THEVI, THAYYIL KIZHAKKETHIL, CLAPPANA THEKKU, CLAPPANA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.THOMAS M.JACOB RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 7064 OF 2009 ------------------------------------------------------ Dated this the 16th day of December, 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 accused in Crime No.203 of 2007 of Karunagappally Excise Range. 2. The petitioner apprehends arrest on an accusation of having committed a non-bailable offence under Section 8(1) and (2) of the Abkari Act. 3. The learned Public Prosecutor submitted that after completing the investigation, charge was laid in the case on 23.9.2009 and the case was numbered as C.P.No.269 of 2009 before the Court of the Judicial Magistrate of First Class, Karunagappally. The petitioner states that the learned Magistrate has issued a non-bailable warrant for the arrest of the petitioner at the inception itself without issuing summons to the petitioner. It is also submitted by the learned counsel for the petitioner that the practice followed by the learned Magistrate is that no bail will be granted on the date on which surrender is made. B.A. NO. 7064 OF 2009 :: 2 :: 5. 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 appear before the Court which issued the non-bailable warrant and to apply for re-calling the warrant and for grant of bail, the Bail Application is closed. (K.T.SANKARAN) Judge ahz/