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. 3262 of 2008() ------------------------- CP.106/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... PETITIONER: ACCUSED ------------------- SASI ACHARY, AGED 55 YEARS, S/O.KUTTIYAMMAL, MUTHUKUVIYIL HOUSE, AMBALAKKADAVU, PATHANAMTHITTA. BY ADV. SRI.T.H.ABDUL AZEEZ SRI.T.S.ABDUL VAHAB RESPONDENTS: COMPLAINANT ------------------------ THE EXCISE INSPECTOR, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. GIKKU JACOB. 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. 3262 of 2008 ------------------------------------------------- Dated this the 27th day of August, 2008 ORDER The petitioner faces indictment in a prosecution for offences punishable under Sec.8 of the Kerala Abkari Act. The petitioner was not arrested in the course of investigation. Investigation is complete. Final report has already been filed. Cognizance has been taken by the learned Magistrate. Summons has been issued to the petitioner to appear before the learned Magistrate on 27/8/2008. The petitioner is willing to appear before the learned Magistrate 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 his application for regular bail on merits, in accordance with law, expeditiously and favouably. In these circumstances, the petitioner has come to this Court to issue Crl.M.C. No. 3262 of 2008 -: 2 :- directions under Sec.482 Cr.P.C. to ensure that the petitioner is not unnecessarily detained in custody. 2. I must assume that the learned Magistrate, when he issued a summons under Sec.204 Cr.P.C. and not a warrant, had exercised his informed discretion. 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 the 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. 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 of expeditious disposal on merits have already been issued in the decision 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 specific observation that if the petitioner surrenders before the Crl.M.C. No. 3262 of 2008 -: 3 :- learned Magistrate in response to summons and offers bail, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously – on the date of surrender itself. 4. Hand over a copy of this order to the learned counsel for the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge