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The question whether the Magistrate of Judicial First Class can grant bail in respect of offences exclusively triable by court of sessions under the SC/ST (Prevention of Atrocities) Act had been considered by a Single Judge by this Court in Shanu v. State of Kerala (2000 (3) KLT 452) and held that the Judicial First Class Magistrate has jurisdiction to grant bail to persons accused of offence punishable under any of the sub-clause (1) to (XV) of sub-s. (1) of S. 3 of the above Act.

9. The learned counsel for the petitioners argued that the Magistrates were not granting bail in cases where the accused were alleged to have committed offences under S. 55 of the Abkari Act holding the view that a Single Bench of this Court in Soman v. Vasanthakumari (2000 (2) KLT 552) has held that a Magistrate is not competent to grant bail in abkari offences. On going through the judgment in Soman v. Vasanthakumari (2000 (2) KLT 552). I do not find any such view taken by the learned Judge. There was no finding that the Magistrate is not competent to grant bail in abkari offences. What was observed by the learned Judge was that there was no such finding by a Division Bench of this Court in Asokan v. State of Kerala (1998 (1) KLT 330) that the Judicial First Class Magistrate has got jurisdiction to grant bail in cases punishable with imprisonment for five years or more under the Abkari Act. There it was observed:

"Counsel for the petitioner has submitted that the above observation made by the Sessions Court is incorrect and the decision reported in Asokan v. State of Kerala (1998 (1) KLT 330) a Division Bench of this Court has held that the Judicial First Class Magistrate has got jurisdiction to grant bail for the offence punishable under the Abkari Act with imprisonment for three years or more. I find no observation in the judgment reported in 1998 (1) KLT 330 referred to above by the Division Bench of this Court to the effect that Judicial First Class Magistrate has got jurisdiction to grant bail in cases punishable with imprisonment for three years or more under the Abkari Act. Therefore the contention of the petitioner that the Judicial First Class Magistrate is competent to grant bail for the offence punishable under the Abkari Act with imprisonment for three years and more is not sustainable."
"So long as an offence under S. 326 is triable by a Magistrate of the First Class, there is no reason why it should be viewed differently in the matter of granting bail from an offence under S. 420 IPC, for which the punishment is a term of imprisonment. The learned Magistrate is not justified in holding that he had no power to grant bail to a person accused on the sole ground that the offence is punishable with imprisonment for life."

A Division Bench of this Court in Asokan v. State of Kerala (1998 (1) KLT 330) considered the constitutional validity of certain provisions of the Abkari Act. It was held that the above penal provisions under S. 55 as well as 8(1) and (2) of the Act are not ultra vires to the Constitution. It was further held the Ss. 41 & 41A of the Abkari Act are also constitutional and that the Criminal Court has to consider the bail application in accordance with the provisions contained under S. 41 and 41A of the Abkari Act read with S. 437 of the Code, and the attending circumstances of each individual cases and the bail application cannot be dismissed merely because that the Public Prosecutor opposes it.

The above decision would reveal that both S. 41 and 41A have to be read together. If that be so, the rigour imposed under S. 41A would be more in respect of persons arrested and produced alleging the commission of the offence under the Abkari Act. But a distinction has to be drawn in respect of cases pending investigation at the crime stage and cases pending committal proceedings after the filing of the charge-sheet or final report. The same rigour may not be there when the investigation of the case has been completed and a charge has been laid before the court without arresting the accused. When a person is arrested and produced before court alleging the commission of an offence under the Abkari Act, the Court has to consider the bail application on the basis of S. 41 as well as S. 41A of the Abkari Act. When the accused was not arrested and a charge sheet had been laid before the court for committal to the Sessions Court, the Magistrate is fully competent to grant bail in view of S. 209 Cr.P.C. and subject to the provisions regarding the grant of bail under the Code and also subject to the restrictions imposed under S. 41A of the Abkari Act. S. 437 of the Code empowers the Magistrate to grant bail to an accused alleged to have committed of non-bailable offences including cases which are exclusively triable by a court of sessions. In such cases, the Court has to consider the bail application on merits. The proviso to sub-s. 1 of S. 437 of the Code empowers the Magistrate the grant of bail in certain circumstances. There may be cases when the accused was not arrested and could not execute any bail bond even though anticipatory bail had been granted to him, by competent court. It is settled law that when the accused is on bail, the committal court cannot refuse bail and remand the accused to judicial custody but he has to be released on bail. When an order for anticipatory bail had been issued from the competent court and the accused was not arrested and he could not execute the bond, it was a special circumstance which the committal court has to consider in granting bail instead of remanding him to the jail as the competent court did not intend the remand of the accused to judicial custody. There may be similar other circumstances. Likewise, the court has to consider the circumstance where the petitioners' request for anticipatory bail had been rejected by this court at the crime stage. When a person was suffering from acute illness and the detention in jail would be detrimental even to his life that may be a special circumstance. A Magistrate considering the bail application in such circumstances, has to give due regard to the above circumstances and apply his mind before refusing bail. A mechanical uniform order rejecting the bail application without applying the judicial mind cannot be termed as a judicial order. When a judicial order is to be passed, the court has to apply its mind to the facts and circumstances of each case, considering the nature and gravity of the offence also. Such an application of mind should be there in each and every case. In view of the provisions under the Code, the committing court is fully competent to grant bail to those persons who are alleged to have committed offences under S. 55 of the Abkari Act and those who are not arrested and are not on bail. In fact the non arrest of the petitioner during the crime stage and till the charge had been laid before the Court, itself can be one of the plus points in favour of granting bail, along with other circumstances. The appearance before the Court immediately after the receipt of the summons and the acceptance of summons shortly after the issue from the court are circumstances not in support of prosecution allegation that the accused was absconding. In Charanswamy & Anr. v. C.B.I (1997 SCC Crl. 14) the Supreme Court held that the paramount consideration has to be whether the enlarge on bail would jeoparadise the prosecution case. When the case does not come whether Clause (i) or (ii) of sub-s. 1 of S. 437 of the Code, the Magistrate has to consider the application for bail on merits and in accordance with S. 437(1) of the Code and S. 41A of the Abkari Act. But when applying S. 41A the rigour would be different when the accused is arrested and produced at the crime stage. A consideration of the entire circumstances would reveal that the committal court has to consider the bail application in accordance with the merits of the case and it cannot be rejected on the ground of lack of jurisdiction and the court is fully empowered to consider the bail application and to grant bail in appropriate cases.