IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 Crl.MC.No. 2263 of 2008() ------------------------- CP.10/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... PETITIONER: ACCUSED ------------ SREENIVASAN @ THAMPI, S/O.BALAKRISHNAN NAIR, MADATHIL VALAPPIL VEEDU, KUTTIPURAM PAZHOOR DESAM TIRUR TALUK, POST PAZHOOR, KUTTIPURAM VIA MALAPPURAM DISTRICT. BY ADV. SRI.SUNIL NAIR PALAKKAT RESPONDENTS: STATE AND COMPLAINANT ------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. 2. T.P.SHEEJA, D/O.T.P.KUTTIKRISHNANA MANCHERI PARAMBIL VEEDU, PONNANI TALUK, TRIKKANNAPURAM DESAM, POST TRIKKANNAPURAM, MALAPPURAM DISTRICT. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.2263 of 2008 ------------------------------------- Dated this the 17th day of June, 2008 ORDER Petitioner faces indictment in a prosecution under Section 376 I.P.C. Investigation is complete. Final report has already been filed. Cognizance has been taken. Committal proceedings has been registered. The petitioner was granted anticipatory bail by another Bench of this Court as per order dated 02.01.01. The petitioner had appeared before the Investigating Officer and was enlarged on bail. But after cognizance was taken, the petitioner has not appeared before the learned Magistrate. Reckoning the petitioner as an absconding accused, coercive processes have been issued against him by the learned Magistrate. He apprehends imminent arrest. 2. According to the petitioner he is absolutely innocent. The alleged offence was committed in 1988 and the complaint was filed long later in the year 2000. The explanation offered for the delay is not convincing, it is submitted. The petitioner could not earlier appear on account of reasons beyond his control. In these circumstances, the petitioner is willing to surrender before Crl.M.C. No.2263 of 2008 2 the learned Magistrate and seek regular bail. But he 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 therefore prayed that directions under Section 482 Cr.P.C may be issued in favour of the petitioner. 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 such application on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions have already been issued in Alice George v. The Deputy Superintendent of Police [2003(1) KLT 339]. 4. This Crl.M.C is, in these circumstances, dismissed, but with the specific observation 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 appropriate orders on merits and expeditiously - on the date of surrender itself, in the light of Crl.M.C. No.2263 of 2008 3 the decision in Sukumari v. State of Kerala [2001(1) K.L.T 22]. The learned Magistrate shall also take into consideration all the facts and circumstances in this case and exercise the discretion under Section 437 Cr.P.C. 5. The learned counsel for the petitioner submits that the petitioner wants to make an application under Section 173(8) Cr.P.C as the Investigating Officers, in spite of his specific request, have not got the D.N.A test conducted to confirm whether the petitioner is responsible for the pregnancy of the child. The petitioner can certainly make such an application after he enters appearance. I do not venture to make any opinion on merits on this aspect. Suffice it to say that if such application is filed, it will have to be considered by the learned Magistrate on merits and in accordance with law and appropriate orders must be passed. (R.BASANT, JUDGE) rtr/-