IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2371 of 2008()
1. JAIMON, S/O.DAMODARAN
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.AJITH MURALI
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :24/06/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 2371 of 2008
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Dated this the 24th day of June, 2008
ORDER
The petitioner faces indictment in a prosecution under
the Kerala Abkari Act. Investigation is complete. Final report
has already been filed. Cognizance has been taken.
Committal proceedings was registered. Summons was issued
at the first instance by the learned Magistrate.
2. According to the petitioner, he was never arrested
earlier. He was unaware of the pendency of the proceedings
against him. He is willing to appear before the learned
Magistrate. But he apprehends that notwithstanding the fact
that the learned Magistrate had issued summons at the stage
of Sec.204 of the Cr.P.C., the learned Magistrate may arrest
him and detain him in custody without considering his
application for bail on merits, in accordance with law and
Crl.M.C. No. 2371 of 2008 -: 2 :-
expeditiously. He apprehends that merely because the case
having triable by a Court of Session, the application for regular
bail may not be considered by the learned Magistrate on merits.
3. The apprehension of the petitioner appears to be
unjustified. The learned Magistrate, I do take note of the
submissions, had issued summons at the stage of Sec.204 of the
Cr.P.C. I must assume that the learned Magistrate, if he has so
issued the summons, must have exercised the discretion at that
stage advisedly and consciously. The learned Magistrate must
pass orders on merits on his bail application under Sec.437 of
the Cr.P.C. This Court has time and again repeated that the
mere fact that the offence is triable by a Court of Session shall
not justify abdication of the powers under Sec.437 of the Cr.P.C.
4. It is for the petitioner to appear before the learned
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
Crl.M.C. No. 2371 of 2008 -: 3 :-
reported in Alice George v. Deputy Superintendent of Police
(2003 (1) KLT 339).
5. In the result, this Crl.M.C. 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. Needless to say,
the application for bail will have to be considered in the light of
the decision in Sukumari v. State of Kerala (2001 (1) KLT 22).
6. Hand over a copy of this order to the learned counsel for
the petitioner.
(R. BASANT, JUDGE)
Nan/