IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 Bail Appl..No. 4936 of 2008() ------------------------------------------ (IN CP.NO.44/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM) PETITIONER:PETITIONER:ACCUSED: ------------------------------------------------------- ELDHOSE, AGED 42 YEARS, S/O.PAILLY, RESIDING AT MANALODI HOUSE, KEERAMPARA VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT:RESPONDENT:COMPLAINANT: -------------------------------------------------------------------- THE STATE OF KERALA, REP. PUBLIC PROSECUTOR, DISTRICT COURT ERNAKULAM, REP. BY THE EXCISE INSPECTOR, KOTHAMANGALAM EXCISE RANGE IN CRIME NO. 41/2003 BY PUBLIC PROSECUTOR SRI. M.S. BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------------------- Bail Application No.4936 of 2008 ------------------------------------------------------- Dated this the 7th day of August, 2008 O R D E R This petition is for anticipatory bail. 2. Petitioner is the accused in C.P.No.44/2008 on the file of JFCM, Kothamangalam. The alleged offence is under Section 55(g) of Abkari Act. Petitioner was not available during the investigation and hence, he was reported to be an absconding accused while the charge was submitted. 3. Learned counsel for petitioner submitted that summons was issued by the court for his appearance and he entered appearance through a counsel and made an application to excuse his absence. It was dismissed. Now, the petitioner apprehends arrest and detention. This petition is filed for anticipatory bail. 4. It is clear from the facts stated above that the petitioner apprehends arrest, not on account of the fact that he is the accused of having committed a non-bailable offence. But, it is only on account of the dismissal of an application filed by his counsel to excuse his absence on a particular day. In a case involving a non-bailable offence under Section 55(g) of Abkari BA No.4936/08 2 Act, the learned Magistrate had issued only summons and not warrant. Therefore, on the accusation of having committed a non-bailable offence, there was no apprehension of arrest. Section 438 of Crl.P.C. applies only if twin conditions exist i.e., (i) that the accused apprehends arrest (ii) such arrest is on the accusation of having committed a non-bailable offence. In this case, these two conditions are not satisfied. He apprehends arrest only because of a lawful arrest warrant issued by the court because of his default to ensure his presence in court. Hence, there is no ground to invoke Section 438 to grant anticipatory bail. 5. It is also relevant to note that the petitioner has not challenged the order dismissing the application for excusing his absence. If that is a lawful order, the consequences will follow. The petitioner will be required for arrest in execution of a non-bailable warrant lawfully issued by the court. This court will not stand in the way of such execution, that too, by exercising jurisdiction under Section 438 Crl.P.C. The petition is dismissed. K.HEMA, JUDGE csl