IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Crl.MC.No. 2965 of 2008() ------------------------- CP.64/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... (CRIME NO.11/2005 OF MALA EXCISE RANGE) PETITIONER: ACCUSED: ------------------------------------- 1. SHIBU PAULOSE, AGED 40 YEARS, S/O.PAULOSE, OLATTUPURATHU HOUSE, THURUTHIPPURAM, NORTH PARAVOOR, ERNAKULAM DISTRICT. 2. BAIJU, AGED 38 YEARS, S/O.MICHEAL, PAYYAPPILLY HOUSE, CHATHDEAM, THURUTHIPPURAM, NORTH PARVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.C.P.AJAYAKUMAR SMT.M.K.SHIMI RESPONDENT:COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNKULAM. BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No.2965 of 2008 ------------------------------------------------- Dated this the 6th day of August, 2008 ORDER The petitioners face indictment in a prosecution under the Kerala Abkari Act as 3rd and 4th accused. They were not arrested at the crime stage. Investigation is complete. Final report has already been filed. Cognizance has been taken. Committal proceedings has been registered. The learned Magistrate, after taking cognizance, has issued summons to the petitioners to appear on 8/8/08. The petitioners are willing to appear before the learned Magistrate. But the petitioners apprehend that the offences have been triable exclusively by a Court of Session and the petitioners having not been enlarged on bail already, the learned Magistrate may not consider the applications for bail to be filed by the petitioners on merits, in accordance with law, expeditiously and Crl.M.C. No.2965 of 2008 -: 2 :- favourably. In these circumstances, it is prayed that appropriate directions may be issued under Sec.482 Cr.P.C. 2. I find the apprehension of the petitioners to be unfounded. The learned Magistrate, it appears to be evident to me, has already applied his mind and has chosen to issue only summons and not warrants under Sec.204 Cr.P.C. It is idle to assume that in the instant case such process has been taken without application of mind. Having issued only summons to the accused to appear before court, it would be heartless and insensitive for the learned Magistrate to remand them into custody when they appear on summons before the court. It is for the petitioners to appear before the learned Magistrate and seek regular bail. The learned Magistrate must consider the applications for bail to be filed by the petitioners on merits, in accordance with law and expeditiously. He must consider such applications cognizant of the fact that he has already exercised the discretion under Sec.204 Cr.P.C. to issue only summons and not warrants. The learned Magistrate must also consider such applications in the light of the dictum in Sukumari v. State of Kerala (2001 (1) KLT 22). No special or specific directions appear to be necessary in this case. Sufficient General directions on this aspect have already been issued in the decision Crl.M.C. No.2965 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 petitioners surrender before the learned Magistrate and seek 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. 4. Hand over a copy of this order to the learned counsel for the petitioners. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No.2965 of 2008 -: 4 :-