IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 Crl.MC.No. 2950 of 2008() ------------------------- CP.81/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT- II,PATHANAMTHITTA .................... PETITIONER: ------------ RADHMONY, W/O KRISHNAN KUTTY, DEVI VILASOM,MALAYALAPUZHA VILLAGE, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: ---------------------- STATE OFKERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No.2950 of 2008 ------------------------------------------------- Dated this the 5th day of August, 2008 ORDER The petitioner – a woman, faces indictment in a prosecution for offences punishable, inter alia, under Sec.8 of the Kerala Abkari Act. She was allegedly not arrested at the crime stage. Investigation is complete. Final report has already been filed. Cognizance has been taken. Committal proceeding has been registered. The learned Magistrate has issued summons to the petitioner to appear. The petitioner had received the summons and she had entered appearance through counsel. On her application, the case now stands posted to 30/8/08 for her appearance. The petitioner is willing to appear; but the she apprehends that her application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. The offence under Crl.M.C. No.2950 of 2008 -: 2 :- Sec.8 of the Abkari Act being the one triable exclusively by a Court of Session. The petitioner apprehends that she may not be granted bail by the learned Magistrate. In these circumstances, it is prayed that appropriate directions may be issued under Sec.482 Cr.P.C. 2. I find no merit in the apprehension aired by the learned counsel for the petitioner. The learned Magistrate at the stage of cognizance has chosen to issue a summons and not a warrant under Sec.204 Cr.P.C. I must assume that the learned Magistrate had applied his mind and had advisedly chosen to issue only a summons. I fail to understand why the petitioner must apprehend that her application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. The materials instilled in me the satisfaction that the learned Magistrate had considered the materials available and had advisedly chosen to issue only a summons. This Court has time and again repeated that mere fact that the offence is triable exclusively by a Court of Session shall not justify abdication of the jurisdiction by the learned Magistrate under Sec.437 Cr.P.C. The application for bail shall have to be considered on merits by the learned Magistrate. While considering that, the learned Magistrate shall certainly Crl.M.C. No.2950 of 2008 -: 3 :- take note of the fact that already the discretion under Sec.204 Cr.P.C. has been exercised to issue only a summons. The learned Magistrate shall also consider such application for bail in the light of the decision in Sukumari v. State of Kerala (2001 (1) KLT 22). 3. In the result, this Crl.M.C. is dismissed; but with the observation that if the petitioner appears before the learned Magistrate and seeks 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. 4. Hand over a copy of this order to the learned counsel for the petitioner. (R. BASANT, JUDGE) Nan/ Crl.M.C. No.2950 of 2008 -: 4 :-