IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Bail Appl..No. 6664 of 2009() ----------------------------------------- CP.197/2001 of J.M.F.C., ADOOR CRIME NO.423/1997 OF PANDALAM POLICE STATION .................... PETITIONER/ACCUSED NO.3: ------------------------------------------- SAJI, S/O.PODI THEVAN, KANJIRA COLONY, KANJIRA VELI MURI, MALLAPPUZHA VILLAGE, PANTALAM. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENTS/ COMPLAINANT/STATE: ---------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, PANDALAM POLICE STATION, PANDALAM, PATHANAMTHITTA DISTRICT. SRI. M.S. BREEZ, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 6664 of 2009 ------------------------------------ Dated this the 16th day of November, 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 accused No.3 in C.P. No. 197/2001 on the file of the Court of Judicial Magistrate of the First Class, Adoor, which is now pending as L.P. No.112/2002 as against the petitioner. 2. The offence alleged against the petitioner is under Section 55(a)(g) of the Abkari Act. 3. After completing the investigation, charge sheet was laid in the case. During committal proceedings, the petitioner did not appear before court. Therefore, non-bailable warrant was issued against him. 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 Vs. State of Kerala [2009(3)KHC 471], it was held that in cases where non-bailable warrant is issued by a court, the proper remedy of the accused is to approach that court which issued the B.A. No. 6664 / 2009 2 warrant and to apply for recalling that warrant and for the grant of bail. It was also observed in Vineeth Somarajan's case that when such an application for bail is filed, the same has to be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007(2) K.L.T 280]. In Sukumari Vs. State of Kerala [2001(1) K.L.T.22], it was held that power under Section 437 of the Code of Criminal Procedure can be exercised by Magistrate even in cases where the offence alleged is exclusively triable by court of Sessions. Reserving the right of the petitioner to move for regular bail and for recalling the non-bailable warrant, the Bail Application is closed. K.T. SANKARAN, JUDGE scm