Mohanan v. State of Kerala and S.I. of Police, Paravur, Kollam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 Crl.MC.No. 2225 of 2008() ------------------------CP.142/2007 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR .................... ## PETITIONER: ACCUSED ------------------- MOHANAN, AGED 47, S/O.CHELLAPPAN,, CHARUVILA VEEDU, PANIYIL, THAZHOM THEKKU CHERRY, CHATHANNOOR PO., CHIRAKKARA VILAGE KOLAM BY ADV. SRI.V.VENUGOPALAN NAIR ## RESPONDENTS: COMPLAINANTS ------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. S.I. OF POLICE, PARAVUR, KOLLAM BY PUBLIC PROSECUTOR SRI.AMJED ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.2225 of 2008 ---------------------------------------Dated this the 13[th] day of June 2008 ## **O R D E R** The petitioner faces indictment in a prosecution under Section 55A of the Kerala Abkari Act. Investigation is complete. Final report has already been filed. Cognizance has been taken. The petitioner was not arrested at the crime stage. Showing him as absconding, final report was filed before court. 2. The petitioner received a summons from the court in this case which did not specify the date of posting. However, the learned counsel for the petitioner went to court and traced the date of posting. On 12/4/2008, the petitioner entered appearance through a counsel and prayed for some time to personally appear and seek bail. The learned Magistrate rejected the application and has issued non-bailable warrant against the petitioner. The petitioner apprehends imminent arrest. 3. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. He is not guilty of any contumacious laches. The summons did not show the specific Crl.M.C.No.2225/08 2 date of posting. So the petitioner had got the date ascertained. On the very first day, in response to summons when he entered appearance through a counsel and made an application, that application was rejected and non-bailable warrant was issued. The learned counsel for the petitioner submits that the issue of non-bailable warrant in the facts and circumstances of this case is totally unjustified. The petitioner is willing to surrender before the learned Magistrate and seek regular bail. But he apprehends that his application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. He, therefore, prays that directions under Section 482 Cr.P.C. may be issued to the learned Magistrate to release the petitioner on bail when he appears and applies for bail. 4. I find substance in the grievance of the petitioner that non-bailable warrant has been issued against him without sufficient justification. If on the very first day of receipt of summons (that too with the alleged confusion about the precise date of posting) the accused appeared through counsel and applied for time to personally appear, I find absolutely no reason Crl.M.C.No.2225/08 3 why the learned Magistrate should have rejected the application. I note that the learned Magistrate has already exercised his discretion under Section 204 Cr.P.C to issue a summons. In these circumstances, certainly a lenient view must have been taken if on the very first date posted for appearance the petitioner appeared through counsel and made an application for whatever reason. 5. It is now 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 find absolutely no reason to assume that the learned Magistrate would not consider the application for bail to be filed by the petitioner on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific directions appear to be necessary. Sufficient general directions have been issued in Alice George vs. Deputy Superintendent of Police [2003(1)KLT 339]. 6. In the result, this Criminal Miscellaneous Case is dismissed but with the specific observation that if the petitioner surrenders before the learned Magistrate and applies for bail, Crl.M.C.No.2225/08 4 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]). The learned Magistrate must also bear in mind the fact that the discretion under Section 204 Cr.P.C had already been exercised by him to issue summons to the accused. In the peculiar facts and circumstances of this case, there shall be a direction that the warrant of arrest shall not be executed against the petitioner till 23/6/2008, on or before which date the petitioner must appear before the learned Magistrate and seek regular bail. Hand over copy of this order to the learned counsel for the petitioner. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.2225/08 5 Crl.M.C.No.2225/08 6 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007