IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 Crl.MC.No. 2719 of 2008() ------------------------- CP.76/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PATHANAMTHITTA .................... PETITIONER: ACCUSED NO 2 ------------------------ RAMACHANDRAN, S/O.CHANDRAN, EDATHARA HOUSE, KANJIRA PARA, KOKKATHODU, ARUVAPULAM VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.T.SURESHKUMAR SRI.V.V.RAJA RESPONDENTS: STATE & COMPLAINANT -------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ANJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2719 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of July, 2008 O R D E R The petitioner faces indictment as the second accused in a prosecution for an offence punishable under the Kerala Abkari Act. He was 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 has issued a summons to the petitioner to appear before the learned Magistrate. On the first date of posting i.e. 9.7.2008 the petitioner appeared through a counsel and applied to excuse his absence. The absence was excused. The case now stands posted to 4.8.2008 for appearance of the petitioner. 2. According to the petitioner he labours an apprehension that when he appears and applies for bail, the learned Magistrate may not grant him bail. He has hence come to this Court with a prayer that appropriate direction may be issued under Section 482 Cr.P.C. Crl.M.C.No. 2719 of 2008 2 3. I find the apprehension to be absolutely baseless. This Court has time and again repeated that the mere fact that the offence is triable by a Court of Sessions will not justify abdication of jurisdiction by a Magistrate under Section 437 Cr.P.C. An application for bail, even if the offence is one triable exclusively by a Court of Sessions, must be considered by the Magistrate under Section 437 Cr.P.C. on merits. In the facts and circumstances of this case, I take note of the further crucial circumstance that the learned Magistrate at the stage of Section 204 Cr.P.C. appears to have invoked his discretion and has chosen only to issue a summons, though a warrant could also have been issued under Section 204 Cr.P.C. Having exercised the discretion under Section 204 Cr.P.C. at the threshold in favour of the petitioner, I find absolutely no justification for the learned Magistrate to take a different view when the accused in response to the invitation by the court appears before it on receipt of the summons. It is certainly for the Magistrate to consider the application for bail and pass appropriate orders expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions Crl.M.C.No. 2719 of 2008 3 have already been issued by this Court in the decision in Alice George v. Dy.S.P. of Police (2003 (1) KLT 339). 4. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously - on the date of surrender itself. Needless to say his application for bail may be considered in the light of the dictum in Sukumari v. State of Kerala (2001 (1) KLT 22) and in the light of the specific circumstance adverted to above that the learned Magistrate has already exercised the discretion to issue a summons and not a warrant. 5. Hand over the order. (R. BASANT) Judge tm