IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 Bail Appl..No. 4566 of 2008(A) ----------------------------------------- (CRIME NO. 162/2006 OF POOYAPPALLY POLICE STATION) .............. PETITIONER/ ACCUSED: ----------------------------------- VIJAYAKUMAR, S/O.RAGHAVAN NAIR, VIJAYAMANDIRAM, MALAYIL MURI, VELLIYAM VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.K.V.ANIL KUMAR. RESPONDENT: --------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. M.S. BREEZ. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18/07/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. -------------------------------------- Bail Application No.4566 of 2008 --------------------------------------- Dated this the 18th day of July, 2008 O R D E R This petition is for bail. 2. The alleged offences are under Sections 8(1) and (2) of Abkari Act. According to the prosecution, the petitioner was found in possession of 3 litres of arrack on 6.4.2006 and also a glass for the purpose of sale of arrack. A crime was registered against the petitioner. 3. Summons was issued to the petitioner in C.P.No.254/07. The date of appearance was on 11.4.2008. On that day, there was no sitting and the case was posted to 4.6.2008. On that day, the petitioner entered appearance through the counsel and filed a petition to excuse his absence. It was allowed and the case was posted to 10.7.2008. On that day, the petitioner appeared before the court below and filed a bail application but he was remanded dismissing his bail application, it is submitted. 4. The petitioner had apprehended that his bail BA No.4566/08 2 application will be dismissed, even though he was appearing on summons issued under Section 204 Crl.P.C. and he was released on bail at the crime stage. So, petitioner filed Crl.M.C.No.2536/08 before this Court to give directions to the learned Magistrate to dispose of the bail application expeditiously etc. It was also brought to the notice of this Court, at the time of hearing of Crl.M.C.No.2536/08, that the petitioner had entered appearance through the counsel before the court and the case stands posted for appearance on 10.7.2008. This court while disposing of the petition observed as follows: “I fail to understand the apprehension of the petitioner. The learned Magistrate must have taken cognizance of the offence and has, I must reckon, advisedly chosen to issue only a summons against the petitioner. The petitioner can now appear before the learned Magistrate and seek regular bail. The learned Magistrate must consider such application for regular bail conscious of the fact that the discretion under Section 204 Crl.P.C. has already been exercised in favour of the petitioner in issuing only a summons and not a warrant. Such application BA No.4566/08 3 for bail, needless to say, must be considered expeditiously. Sufficient general directions on this aspect have already been issued in the decision reported in Alice George vs. Deputy Superintendent of Police (2003(1) KLT 339). The application will also have to be considered in the light of the dictum in Sukumari vs. State of Kerala (2001(1) KLT 22). In these circumstances, I am satisfied that no further or more specific directions deserve to be issued.” 5. In spite of all the above observations, when the petitioner appeared before the lower court on 10.7.2008 and filed the bail application, it was dismissed by the court below and petitioner was remanded. The learned Magistrate has not acted in accordance with the dictum laid down in Sukumari vs. State of Kerala, nor in the light of the spirit of the order passed in Crl.M.C.No.2536/08 despite indicating the need for the court to be conscious about it, as per order passed in Crl.M.C.No.2536/08 by this Court. It is not understood, why in spite of the explicit caution hinted in the order in Crl.M.C.No.2536/08, the petitioner was remanded, at least without considering the dictum laid down BA No.4566/08 4 in the two decisions referred to the said order. A remark from the learned Magistrate need to be called for. But that need not be a ground to detain the petitioner any further in custody. After hearing both sides, I find that the petitioner can be granted bail and the following order is passed: (i) Petitioner shall be released on bail on his executing bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the Magistrate Court concerned. (ii) Registry shall call for the remarks of the Judicial Magistrate of First Class II-Kottarakara in this matter. The remarks shall be submitted within 4 days from the date of receipt memo from the registry. The petition is allowed. K.HEMA, JUDGE csl