Thankappan vs State Of Kerala Represented By on 16 October, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 5892 of 2009()


1. THANKAPPAN, AGED 50 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.B.RENJITHKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.T.SANKARAN

 Dated :16/10/2009

 O R D E R
                         K.T.SANKARAN, J.
            ------------------------------------------------------
                     B.A. NO. 5892 OF 2009
            ------------------------------------------------------
            Dated this the 16th day of October, 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 first accused

in Crime No.684 of 2006 of Karunagappally Police Station, which is

now pending as C.P.No.76 of 2009, on the file of the Court of the

Judicial Magistrate of the First Class, Karunagappally.

2. The offence alleged against the petitioner is under Section

55(g) and (h) of the Abkari Act.

3. It is submitted that a non-bailable warrant was issued by

the Magistrate’s Court. The petitioner apprehends arrest in

execution of the warrant.

4. In Vineeth Somarajan 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, the remedy of

the accused is to file an application for withdrawal of the warrant and

B.A. NO. 5892 OF 2009

:: 2 ::

for the grant of bail. 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 taking into account 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.

In the light of the aforesaid decisions, I am of the view that the

remedy of the petitioner is to apply for withdrawal of the warrant and

for the grant of bail. Reserving the liberty of the petitioner to do so,

this Bail Application is closed. Needless to say that when the

Magistrate Court is approached, the decisions referred to above

shall be taken note of by the Court.

(K.T.SANKARAN)
Judge

ahz/