IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 Crl.MC.No. 3179 of 2008() ------------------------- CRIME NO. 152/06 OF POOYAPPALLY POLICE STATION CP.253/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... PETITIONERS/ACCUSED: ---------------------------------- 1. BIJU, AGED 20 YEARS, S/O. SUNDARESAN BIJU BHAVANAM, MARUR MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA. 2. SHIJU, AGED 22 YEARS, S/O. SUNDARESAN DO. DO. BY ADV. SRI.K.V.ANIL KUMAR RESPONDENT/COMPLAINANT: ------------------------------------------ STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3179 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2008 O R D E R The petitioners, two young men aged 20 years and 22 years, faced indictment for the prosecution under Section 55(g) of the Kerala Abkari Act. They, it is submitted, were never arrested at the crime stage. Investigation is now complete. Final report has already been filed. Cognizance has been taken. Committal proceedings has been registered. After taking cognizance, the learned Magistrate has issued summons and not warrant under Section 204 Cr.P.C. The petitioners have been directed to appear before the learned Magistrate on 22.8.2008 as per the summons issued. 2. The petitioners have come to this Court with a prayer that directions under Section 482 Cr.P.C. may be issued in their favour. What is the nature of directions that the petitioners want? According to the learned counsel for the petitioners, eventhough the learned Magistrate has chosen to issue only a summons and Crl.M.C.No. 3179 of 2008 2 not a warrant under Section 204 Cr.P.C. the petitioners apprehend that the offence being one triable exclusively by a Court of Sessions, the learned Magistrate may not consider their application on merits, in accordance with law and favourably. Hence it is prayed that directions under Section 482 Cr.P.C. may be issued in favour of the petitioners. 3. I find absolutely no merit in the apprehension of the petitioners. I must assume that the learned Magistrate has cautiously and advisedly chosen to invoke the discretion under Section 204 C.P.C. to issue a summons and not a warrant. If the learned Magistrate had chosen to issue a warrant, certainly the petitioners would have been entitled to seek anticipatory bail as explained in Bharath Choudhary v. State of Bihar (AIR 2003 SC 4662). Having exercised the discretion under Section 204 Cr.P.C. in favour of the petitioners to issue only a summons and not a warrant, I find no reason for the learned Magistrate to remand the petitioners to custody when they appear in response to the invitation extended to them under the summons issued. The mere fact that the offence is triable by a Court of Sessions does not justify the abdication of the powers under Section Crl.M.C.No. 3179 of 2008 3 437 Cr.P.C. Having induced the petitioners by issue of summons under Section 204 Cr.P.C. it would be heartless and insensitive for any Magistrate to remand the accused persons to custody, if they are willing to offer bail. I am, in these circumstances, satisfied that there is no merit in the apprehension of the petitioners that when they appear in court in response to the summons issued, they shall be remanded to custody if they are willing to offer bail. 4. This application is accordingly dismissed. I may however hasten to observe that if the petitioners appear before the learned Magistrate and apply 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. (R. BASANT) Judge tm