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. 2765 of 2008 ------------------------- CP.56/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... PETITIONERS/4TH & 5TH ACCUSED --------------------------------------- 1. SULAIMAN, AGED 35 YEARS, S/0 MUSTAPHA, CHARIVUPURAYIDATHIL HOUSE, PEXHUMPARA, VADASSERIKKARA (ACCUSED NO.4) 2. JOHNY, AGED 40 YEARS, S/0 CHACKO, THEVARKKATIL VEEDU, PEZHUMPARA. (ACCUSED NO.5) BY ADV. SRI.V.SETHUNATH RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE SUB INSPECTOR OF POLICE, CHITTAR POLICE STATION. 2. THE STATE OF KERALA REPRESENTED 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 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.2765 of 2008 ---------------------------------------- Dated this the 23rd day of July 2008 O R D E R The petitioners face indictment in a prosecution for the offence punishable under Section 8 of the Kerala Abkari Act. Investigation is complete. Final report has been filed. Cognizance has been taken. Committal proceedings have been registered. The learned Magistrate, it is submitted, had issued summons (and not warrant) under Section 204 Cr.P.C to secure the presence of the petitioners. The petitioners entered appearance through counsel and prayed for time to personally appear. That application was allowed and the case now stands posted to 07/08/2008. The petitioners are willing to appear before the learned Magistrate and offer bail. But they apprehend that the offence being one punishable under Section 8 of the Kerala Abkari Act, their application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously and it may be insisted by the learned Magistrate that the petitioners must seek bail from the Sessions Court. I find no merit in this apprehension at all. It is by now Crl.M.C.No.2765/08 2 trite that notwithstanding the fact that an offence is triable by a court of Sessions, the learned Magistrate cannot abdicate his jurisdiction under Section 437 Cr.P.C to dispose of a bail application on merits. Every Magistrate must consider such application for bail on merits. 3. In the facts and circumstances of this case I do further note that the learned Magistrate has exercised the discretion under Section 204 Cr.P.C already to issue a summons and not a warrant. I must assume that the learned Magistrate has advisedly and with due application of mind chosen to exercise that discretion in favour of the petitioner. I fail to understand how and why after issuing a summons any Magistrate would choose not to consider the application for bail of the petitioner on merits. Suffice it to say that the learned Magistrate must consider the application on merits, in accordance with law and expeditiously. Sufficient general directions have been issued in Alice George vs. Deputy Superintendent of Police [2003(1)KLT 339] and I am not persuaded to agree that any specific or special directions need be issued in favour of the petitioner. Crl.M.C.No.2765/08 3 4. In the result, this Criminal Miscellaneous Case is dismissed but with the specific observation that if the petitioners surrender 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 appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself, in the light of Sukumari v. State of Kerala [2001(1)KLT 22]) and in the light of the circumstance that summons and not warrant was issued at the first instance under Section 204 Cr.P.C. (R.BASANT, JUDGE) jsr Crl.M.C.No.2765/08 4 Crl.M.C.No.2765/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008