Arun P.P vs The State Of Kerala
2023 Latest Caselaw 9474 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    TUESDAY, THE 5TH DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945
                       CRL.MC NO. 5488 OF 2023
 AGAINST THE ORDER/JUDGMENT LP 38/2022 OF JUDICIAL MAGISTRATE OF
                      FIRST CLASS -II, VADAKARA
PETITIONER/ACCUSED:

          ARUN P.P.
          AGED 27 YEARS
          S/O.MOHANAN, RESIDING MADHAVI NIVAS,KUNNATHUKARA DESOM,
          PALAYAD VILLAGE, VADAKARA TALUK, KOZHIKODE.
          BY ADVS.
          B.KRISHNA MANI
          N.V.SANDHYA
          DHANUJA M.S


RESPONDENTS/THE STATE AND THE COMPLAINANTS:

    1     THE STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, ERNAKULAM., PIN - 682031
    2     THE CIVIL EXCISE OFFICER,
          EXCISE RANGE OFFICE, VADAKARA, KOZHIKODE-673101,
          PIN - 673101
    3     THE PREVENTIVE OFFICER,
          EXCISE RANGE OFFICE, VADAKARA, KOZHIKODE, PIN - 673101


          BY ADV.
          SMT.SEENA.C, PP



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.5488 of 2023


                             2




             P.V.KUNHIKRISHNAN, J.
            ------------------------------
             Crl.M.C.No.5488 of 2023
    ----------------------------------------------
   Dated this the 05th day of September, 2023


                          ORDER

This Criminal Miscellaneous Case is filed under

Section 482 of the Code of Criminal Procedure, 1973

("the Code" for the sake of brevity).

2. Petitioner is the accused in Crime No.61/2020

of the Excise Range Office, Vadakara, Kozhikode.

Petitioner was charge sheeted alleging offence

punishable under Sections 55(g) and 8(1) of the

Abkari Act. The prosecution case is that the

petitioner was found in possession of 2.5 liters of

arrack along with 35 liters of wash. The case against

the petitioner is now included in the Long Pending Crl.M.C.No.5488 of 2023

register and pending as L.P.No.38/2022 before the

Judicial First Class Magistrate Court - I, Vadakara. In

such circumstances, I am of the considered opinion

that the petitioner has to raise the contentions raised

in this Crl.M.C. before the trial court at the

appropriate stage. Since the petitioner is an

absconding accused, the petitioner has to surrender

before the lower court. While considering the bail

application, the lower court will consider the fact that

the final report is already filed.

3. The petitioner submits that the petitioner is

ready to surrender before the jurisdictional court and

if he surrender before the jurisdictional court,

jurisdictional court may remand him without

considering his bail application.

4. The Public Prosecutor submitted that no such

apprehension is necessary and this court may not Crl.M.C.No.5488 of 2023

pass any direction to the lower court to release the

petitioner on bail and that is a matter to be decided

by the trial court.

5. This court in Vineeth Somarajan @ Ambadi

v. State of Kerala and another (2009 (3) KHC

471) relied on the dictum laid down by another

learned Single Judge in Biju S. Praveen v. State of

Kerala and Another (2007 (2) KLT 280)

considered this point. It will be better to extract

the relevant portion of Vineeth Somarajan's case

(supra).

"14. The apprehension of the petitioner is that if

he appears before the Trial Court, he would be

remanded to judicial custody. In Biju v. State of

Kerala, 2007 KHC 3436 : 2007 (2) KLT 280 :

2007 (1) KLJ 713 : ILR 2007 (2) Ker. 26 : 2007 (1)

KLD 486, Justice A. K. Basheer, after noticing the Crl.M.C.No.5488 of 2023

practice that is being followed by some learned

Magistrates (vide paragraph 16) held at paragraph

18 thus:

'18. As mentioned earlier, Criminal Courts should always be careful while passing orders on bail applications which in effect deal with personal liberty. In cases where the Court decides to send an accused to custody pending trial, it must be ensured that the Court applies its mind judicially and judiciously with particular reference to the facts and circumstances of the case. The mere fact that the accused had failed to respond to a summons or that the Court had to issue non bailable warrant to compel his presence will not ipso facto empower the Criminal Court to remand the accused to custody as a punitive measure when he appears before the Court on his own volition or is produced in execution of the warrant. The bail application that may be moved on his behalf has to be considered and orders should be passed on the same day itself since personal liberty of an accused cannot be curtailed in a whimsical or disdainful manner.' I am in respectful agreement with the dictum laid down in Biju v. State of Kerala."

6. In the light of the above dictum laid down by

this court, I think the apprehension of the petitioner

that the jurisdictional court will remand the accused

without application of mind is unnecessary. Therefore, Crl.M.C.No.5488 of 2023

this Criminal Miscellaneous Case is disposed of with

the following directions:

1) The petitioner shall surrender before the

jurisdictional court within two weeks from today. If an

application for bail with advance copy to the

prosecutor concerned is filed at the time of surrender

by the petitioner, the jurisdictional court shall

consider the same and pass appropriate orders in

accordance with law, ideally on the date of surrender

itself.

2) In order to enable the petitioner to appear

before the court below, coercive proceedings pending

against the petitioner shall be kept in abeyance for a

period of two weeks.

Sd/-

P.V.KUNHIKRISHNAN DM JUDGE Crl.M.C.No.5488 of 2023

APPENDIX OF CRL.MC 5488/2023

PETITIONER ANNEXURES ANNEXURE-I A TRUE COPY OF THE FINAL REPORT HAS BEEN FILED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, VADAKARA AND A TRUE COPY OF THE SAME DATED 15/2/2022.

ANNEXURE-II A TRUE COPY OF THE MAHAZAR DATED 23/4/2020.

ANNEXURE-III A TRUE COPY OF THE OCCURRENCE REPORT AND A TRUE COPY OF THE SAME DATED 23/4/2020.

RESPONDENTS EXHIBITS       :NIL
                 //TRUE COPY//    PA TO JUDGE