IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 Bail Appl..No. 1266 of 2008() ----------------------------- LP.31/2002 of J.M.F.C.-II,PERINTHALMANNA CRIME NO.52/96 OF THE PANDIKKAD POLICE STATION .................... PETITIONER/ACCUSED NO.2 ---------------------------------------- NEELANGADAN UNNEENKUTTY, S/O.MOOSAKUTTY, THODIKAPULAM, CHEMBRASSERY, THUVVUR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENTS: STATE ------------------ THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PANDIKKAD POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY P.P. SRI. GIKKU JACOB. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1266 of 2008 ------------------------------------------------- Dated this the 25th day of February, 2008 ORDER Application for anticipatory bail. The petitioner is the 2nd accused who faced indictment in a crime No.52/96 of the Pandikkad Police Station registered alleging offences punishable, inter alia, under Sec. Sec.3(1)(x) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act (for short `the Act'). Investigation is complete. Final report has already been filed. Except the offence under Sec.3(1)(x) of the Act, all other offences are bailable. The co-accused had already entered appearance. The case against them was committed to the Court of Session. Those co-accused have already been tried, found not guilty and acquitted, it is submitted by the learned counsel for the petitioner. As the petitioner was not available for trial, the case against him is B.A. No. 1266 of 2008 -: 2 :- continuing to be pending before the learned Magistrate. The same has been transferred to the list of Long Pending Cases. The petitioner was released on bail at the crime stage, submits the learned counsel for the petitioner. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. His absence earlier was not wilful or deliberate. He is now willing to surrender before the learned Magistrate and seek regular bail. The petitioner apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. It is, in these circumstances, that the petitioner has come to this Court for a direction to the learned Magistrate to release him on bail when he appears before the learned Magistrate. 3. 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 B.A. No. 1266 of 2008 -: 3 :- 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 reported in Alice George v. Deputy Superintendent of Police (2003 (1) KLT 339). 4. The apprehension that the learned Magistrate may not consider the application for bail on merits as the offence under Sec.3(1)(x) of the Act is triable exclusively by a Court of Session does not also appear to be justified. 5. It is by now trite and this Court had repeated the said proposition in the decisions reported in Ali v. State of Kerala (2000 (2) K.L.T. 280); Shanu v. State of Kerala (2000 (3) K.L.T. 452); Krishnakumar v. State of Kerala (2005 (1) K.L.D. (Cri) 42 and P.P. Kader v. State of Kerala (2005 (1) K.L.D. (Cri) 250) that notwithstanding the fact that the offences are triable by a Court of Session, the Magistrate is obliged to consider the application for bail on merits. In the facts and circumstances of this case, I am satisfied that the interests of justice will be served eminently by issue of a direction to the learned Magistrate to consider the application for bail to be filed B.A. No. 1266 of 2008 -: 4 :- by the petitioners on their surrender before the learned Magistrate – of course, after giving sufficient prior notice to the Prosecutor-in- charge expeditiously – on the date of surrender itself and in the light of the decisions referred above. 6. This bail application is, in these circumstances, dismissed with the above specific observations. 7. 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