IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Crl.MC.No. 2327 of 2008() ----------------------------------- (CRIME NO.244/05 OF KASARAGOD POLICE STATION) PETITIONER/1ST ACCUSED --------------------------------------- SUBAIR SADIQUE, S/O.LATE ABDUL LATHEEF AROMA MANZIL, NAIMMARAMOOLA, MUTTATHADY VILLAGE KASARAGODE TALUK. BY ADV. SRI.P.K.MUHAMMED RESPONDENTS: ---------------------- 1. THE SUB INSPECTOR OF POLICE, KASARAGOD POLICE STATION KASARAGOD. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2327 of 2008 ------------------------------------------------- Dated this the 20th day of June, 2008 ORDER The petitioner is the 1st accused and he faced indictment along with the co-accused for offences punishable, inter alia, under Sec.3(1)(x) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. The petitioner was not available for trial. All the co-accused stood trial. They have already been found not guilty and acquitted. The case against the petitioner has been split up. Coercive processes have been issued against the petitioner. The petitioner apprehends imminent arrest. 2. According to the petitioner, he is absolutely innocent. His absence earlier was not wilful or deliberate. The petitioner, in these circumstances, wants to surrender before the learned Magistrate and seek regular bail. The petitioner Crl.M.C. No. 2327 of 2008 -: 2 :- 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. 3. 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 reported in Alice George v. Deputy Superintendent of Police (2003 (1) KLT 339). 4. 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 Crl.M.C. No. 2327 of 2008 -: 3 :- expeditiously – on the date of surrender itself. 5. The learned counsel for the petitioner expresses a further apprehension that the offence under Sec. 3(1)(x) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act being triable exclusively by a Court of Session. 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 absolve the learned Magistrate to justify abdication of the powers under Sec.437 of the Cr.P.C. (See. Ali v. State of Kerala (2000 (2) K.L.T. 280); Shanu v. State of Kerala (2000 (3) K.L.T. 452); Krishnakumar v. State of Kerala (2005 (1) K.L.D. (Cri) 42 and P.P. Kader v. State of Kerala (2005 (1) K.L.D. (Cri) 250). I make it clear that an order on merits under Sec.437 of the Cr.P.C., in accordance with the dictum in the said decisions, must be passed by the learned Magistrate. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 2327 of 2008 -: 4 :-