IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 Bail Appl..No. 1040 of 2008() ----------------------------- CP.252/2007 of J.M.F.C.,CHALAKUDY .................... PETITIONERS/A1 & 2 ---------------------------------- 1. SUDHAKARAN, S/O. KUMARAN, AYYAMKULAM HOUSE, NORTH KUNNAKUZHI DESOM PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. 2. RAMAN @ RAMAKRISHNAN, S/O. KUMARAN, DO. DO. BY ADV. SRI.A.M.BABU RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1040 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of February, 2008 O R D E R The petitioners face indictment in a prosecution under the Kerala Abkari Act. They have not been arrested at the crime stage or thereafter. Investigation is now complete. Final report has already been filed. Cognizance has been taken. Committal proceedings has been registered. The learned Magistrate has issued summons to the petitioners to appear before Court on 18.2.2008. Though summons has been issued to the petitioners by the learned Magistrate, they apprehend that their applications for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously as they are shown as absconding in the final report. 2. According to the petitioners their absence was not willful. They had no knowledge about the proceedings pending against them. The learned counsel for the petitioners submits that the petitioners are willing to appear before the learned Magistrate. But they apprehend that their applications for bail B.A.No. 1040 of 2008 2 may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. The learned Magistrate has chosen to exercise his discretion under Section 204 Cr.P.C. to issue summons only and not a warrant. I assume that the discretion must have been exercised by the learned Magistrate with due regard to all the circumstances. The mere fact that an indictee has been shown as absconding by the police is no reason to initiate coercive proceedings against such indictee or to remand him to custody. 3. It is trite after the decision in Bharat Chaudhary v. State of Bihar (AIR 2003 SC 4662) that powers under Section 438 Cr.P.C. can be invoked even in favour of a petitioners, who apprehend arrest in the pending case on the strength of a non-bailable warrant issued by the court. Even that is not by itself sufficient to justify the invocation of the jurisdiction under Section 438 Cr.P.C. I am unable to find any compelling reasons which would justify invocation of the jurisdiction under Section 438 Cr.P.C. 4. It is certainly for the petitioners to appear before the learned Magistrate and explain to the learned Magistrate the circumstances under which they could not earlier appear before the learned Magistrate. I have no reason to assume that the learned Magistrate B.A.No. 1040 of 2008 3 would not consider the applications for bail to be filed by the petitioners when they surrender before the learned Magistrate, on merits, in accordance with law and expeditiously, conscious of the fact that the discretion under Section 204 Cr.P.C. has already been exercised in favour of the petitioners by issuing summons only. The learned Magistrate must consider the bail application in the light of the decision in Sukumari v. State of Kerala (2001 (1) KLT 22). No special or specific direction appears to be necessary. Sufficient general directions have already been issued by this Court in the decision in Alice George v. Dy.S.P. of Police (2003 (1) KLT 339). 7. This application is accordingly dismissed with the specific observation that the petitioners' applications for regular bail must be considered by the learned Magistrate and pass orders on merits, in accordance with law and expeditiously on the date of surrender itself, in the light of the observations above. (R. BASANT) Judge tm