IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 Crl.MC.No. 3263 of 2008() ------------------------- CP.7/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... PETITIONER: ACCUSED ------------------- OMANA, D/O.KUTTI, AGED 45 AALUMTHARA PADEETTATHIL HOUSE, PRAYAR, THEKKUMURI, CLAPPANA VILLAGE. BY ADV. SRI.K.R.SUNIL RESPONDENTS: COMPLAINANT ------------------------ SUB INSPECTOR OF POLICE, OCHIRA POLICE STATION, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY P.P. SRI. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 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 :-