IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 Crl.MC.No. 2371 of 2008() ------------------------- CP.60/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT- II,PATHANAMTHITTA CRIME NO.421/07 OF KOIPPURAM POLICE STATION .................... PETITIONER: ------------ JAIMON, S/O.DAMODARAN PULLOLIKKAL VEEDU, MUNDAMALA, PURAMATTOM VILLAGE PATHANAMTHITTA. BY ADV. SRI.AJITH MURALI RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY P.P. SRI. JAI GEORGE. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2371 of 2008 ------------------------------------------------- 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/