IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 Bail Appl..No. 7590 of 2009() ------------------------------------------ CRIME NO.41/2009 OF EXCISE RANGE, NILESHWAR(KASARAGOD DISTRICT. ........... APPLICANT (S): ACCUSED ------------------------ K. MADHAVI, AGED 56 YEARS, W/O. K. KOTTAN, RESIDING AT MALAPPACHERRY, MADIKAI VILLAGE, HOSDURG TALUK. BY ADV. SMT.P.K.PRIYA RESPONDENT(S): COMPLAINANT ------------------------- THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING EXCISE INSPECTOR, NILESHWAR RANGE. PUBLIC PROSECUTOR MR.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss K.T. SANKARAN, J. --------------------------- B.A. No.7590 of 2009 ------------------------------------ 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 B.A. No.7590/2009 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 B.A. No.7590/2009 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