IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3263 of 2008()
1. OMANA, D/O.KUTTI, AGED 45 AALUMTHARA
... Petitioner
Vs
1. SUB INSPECTOR OF POLICE, OCHIRA POLICE
... Respondent
For Petitioner :SRI.K.R.SUNIL
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :27/08/2008
O R D E R
R. BASANT, J.
-------------------------------------------------
Crl.M.C. No. 3263 of 2008
-------------------------------------------------
Dated this the 27th day of August, 2008
ORDER
The petitioner – a woman, faces indictment in a
prosecution under Sec.8 of the Kerala Abkari Act. The
petitioner was not arrested in the course of investigation.
Final report was filed showing her as an absconding accused.
In spite of that, the learned Magistrate has issued only a
summons to her to appear before him. The petitioner is
willing to appear and offer bail; but the petitioner apprehends
that the offence being the one triable exclusively by a Court of
Sessions, the learned Magistrate may not consider her
application for regular bail, on merits, in accordance with law
and expeditiously. In these circumstances, it is prayed that
appropriate directions may be issued under Sec.482 Cr.P.C. to
ensure that the petitioner is not unnecessarily detained in
Crl.M.C. No. 3263 of 2008 -: 2 :-
custody.
2. I find the apprehension of the petitioner to be totally
unjustified. The learned Magistrate has evidently chosen to
invoke his discretion under Sec.204 Cr.P.C. to issue a summons
and not a warrant. I assume that the discretion has been
exercised by the learned Magistrate after due application of
mind and in an informed manner. Having chosen to exercise the
discretion under Sec.204 Cr.P.C. in favour of the petitioner and
having issued only a summons to the accused, it appears to me to
be heartless, insensitive and harsh for any court to remand an
accused person who has come to court on the invitation extended
to him by the court by issuing a summons. The Magistrate has a
discretion under Sec.437 Cr.P.C. and the fact that offence is
triable exclusively by a Court of Sessions does not take away that
discretion; nor justify the abdication of jurisdiction under
Sec.437 Cr.P.C. This aspect of the matter has been considered
in detail in the order dated 13/8/2008 in Crl.M.C.No.3056/08. I
do not find any reason to assume that the learned Magistrate
would resort to such a course of remanding a person who is
appearing in response to a summons and is willing to offer bail.
Sufficient general directions on this aspect regarding
expeditious disposal have already been issued in the decision
Crl.M.C. No. 3263 of 2008 -: 3 :-
reported in Alice George v. Deputy Superintendent of Police
(2003 (1) KLT 339).
3. 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.
Sd/-
(R. BASANT, JUDGE)
Nan/
HO
//true copy//
P.S. to Judge
Crl.M.C. No. 3263 of 2008 -: 4 :-