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.
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B.A. No.7590 of 2009
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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
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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
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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