IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 Bail Appl..No. 548 of 2010 C.R.NO.224 OF 2008 OF KARUNAGAPPALLY EXCISE RANGE C.P.NO.325 OF 2009 OF JFMC, KARUNAGAPPALLY. PETITIONER/ACCUSED -------------------------------------- SOMAN,S/O.KUTTAPPAN,AGED 48 YEARS, MURUPLAVILAYIL,MANAPPILLI SOUTH MURI, PAVUMBA VILLAGE,KARUNAGAPPALLY TALUK. BY ADV. SRI. K.SIJU RESPONDENT: --------------- STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE,KARUNAGAPPALLY THROUGH PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 548 OF 2010 ------------------------------------------------------ Dated this the 25th day of February, 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 C.P.No.325 of 2009 on the file of the Court of the Judicial Magistrate of the First Class, Karunagappally, arising out of C.R. No.224 of 2008 of Karunagappally Excise Range. 2. The offence alleged against the petitioner is under Section 55(i) of the Abkari Act. 3. The prosecution case is that on 18.12.2008, the petitioner was engaged in the sale of Indian Made Foreign Liquor. On seeing the Excise party, the petitioner ran away. The petitioner was not arrested even thereafter. Charge sheet was filed on 24.11.2009. It is submitted that instead of issuing summons, a non-bailable warrant was issued against the petitioner. The petitioner apprehends arrest in execution of the non-bailable warrant. Therefore, this Bail Application is filed. B.A. NO.548 OF 2010 :: 2 :: 4. 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). 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. 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/