IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25275 of 2008(H)
1. GOPALAKRISHNAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.SAJU.S.A
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :21/08/2008
O R D E R
R. BASANT, J.
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W.P.(c)No. 25275 of 2008-H
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Dated this the 21st day of August, 2008
JUDGMENT
The petitioner faces indictment as 1st accused in a
prosecution for offences punishable under Secs.56(b) and 57(a)
of the Kerala Abkari Act. The alleged offences were detected
in 1997 by the Excise officials. After investigation, final report
has been filed and cognizance has been taken in 2007. The
petitioner, who was not arrested at any earlier point of time,
now finds a warrant of arrest issued by the learned Magistrate
chasing him. According to the petitioner, he is absolutely
innocent. He was always available and was willing to co-
operate with the Investigators. Most unjustifiably without
arresting the petitioner or without informing the petitioner all
the need to seek bail, he has been shown as an accused in the
final report without any specific statement as to why he has not
W.P.(c)No. 25275 of 2008-H
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been arrested at all. The petitioner was always available for
arrest. Cognizance was taken by the learned Magistrate on the
basis of the final report. Reckoning the petitioner as an
absconding accused, a non-bailable warrant of arrest has been
issued against the petitioner. The petitioners finds such
processes chasing him. The petitioner apprehends imminent
arrest.
2. According to the petitioner, he is absolutely innocent.
His omission/failure to appear before the Investigating Officer
or the learned Magistrate earlier was not wilful or deliberate.
The petitioner, in these circumstances, wants to surrender
before the learned Magistrate and seek regular bail. The
petitioner apprehends that his application for regular bail may
not be considered by the learned Magistrate on merits, in
accordance with law and expeditiously. It is, in these
circumstances, that the petitioner has come to this Court for a
direction to the learned Magistrate to release him on bail when
he appears before the learned Magistrate.
2. It is for the petitioner to appear before the learned
W.P.(c)No. 25275 of 2008-H
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Magistrate and explain to the learned Magistrate the
circumstances under which he could not earlier appear before
the learned Magistrate. I have no reason to assume that the
learned Magistrate would not consider the petitioner’s
application for regular bail on merits, in accordance with law
and expeditiously. No special or specific directions appear to
be necessary. Every court must do the same. Sufficient general
directions on this aspect have already been issued in the decision
reported in Alice George v. Deputy Superintendent of Police
(2003 (1) KLT 339).
3. In the result, this writ petition is dismissed; but with
the observation that if the petitioner surrenders before the
learned Magistrate and seeks bail, after giving sufficient prior
notice to the Prosecutor in charge of the case, the learned
Magistrate must proceed to pass appropriate orders on merits
and expeditiously – on the date of surrender itself.
4. Though in this writ petition quashing of the proceedings
is claimed, at the stage of hearing, that relief is not pressed. It
is prayed that it may be observed that the petitioner shall be
W.P.(c)No. 25275 of 2008-H
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entitled to claim discharge at the stage of Sec.227/228 Cr.P.C.
Needless to say, that right under the Code will be available to
him.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge