High Court Kerala High Court

K. Madhavi vs The State Of Kerala on 4 January, 2010

Kerala High Court
K. Madhavi vs The State Of Kerala on 4 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 7590 of 2009()


1. K. MADHAVI, AGED 56 YEARS,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA, REP. BY PUBLIC
                       ...       Respondent

                For Petitioner  :SMT.P.K.PRIYA

                For Respondent  :PUBLIC PROSECUTOR

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

 Dated :04/01/2010

 O R D E R
                       K.T. SANKARAN, J.
                    ---------------------------
                     B.A. No.7590 of 2009
               ------------------------------------
            Dated this the 4th day of January, 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 Cr. No.41/2009 of Nileshwar Excise Range,

Kasaragod.

2. The offence alleged against the petitioner is under

Section 8(1)(2) of the Abkari Act.

3. The prosecution case is that on 7/12/2009, the

petitioner was found transporting 4 litres of arrack. She could

not be arrested as no woman police constable was available.

The petitioner apprehends arrest and therefore she has filed

this application for anticipatory bail.

4. The learned counsel for the petitioner submitted

that the petitioner is aged 56 years and that she is suffering

from various ailments, for which she regularly takes ayurvedic

medicines. Some prescriptions were also produced for perusal.

It is submitted that the petitioner cannot even walk properly

because of her ailments. The counsel also submits that no

B.A. No.7590/2009
2

such incident as alleged by the prosecution occurred on

7/12/2009. The petitioner is falsely implicated in the case. It is

also submitted that there is another woman, who is having the

same name as Madhavi and she is involved in several abkari

offences. The case was initiated against the petitioner on a

mistaken impression that the petitioner is the other Madhavi.

5. In an application for anticipatory bail, I do not think

that it is proper to consider the aforesaid contentions and to

arrive at a conclusion as to the complicity or otherwise of the

petitioner in the offence. The illness of the petitioner and the fact

that she is a woman aged 56 years can be put forward before the

learned Magistrate in an application under Section 437 of the

Code of Criminal Procedure and I am sure that those factors will

be taken into note of while dealing with an application for regular

bail. It is also well settled that even in cases exclusively triable

by the court of Sessions, the learned Magistrate has jurisdiction

to grant bail under Section 437 of the Code of Criminal Procedure

{Sukumari Vs. State of Kerala [2001(1) K.L.T.22]}. At the same

time, I am of the view that this is not a fit case where the

B.A. No.7590/2009
3

discretionary relief under Section 438 can be exercised by this

court.

In the facts and circumstances of the case, I am not

inclined to grant anticipatory bail to the petitioner. Bail

Application is dismissed with the observations mentioned above.

The petitioner would be free to raise all the aforesaid contentions

after her arrest and when she moves an application under

Section 437 of the Code of Criminal Procedure.

K.T. SANKARAN, JUDGE

scm