The committing court is fully empowered to grant bail to the accused, subject to the provisions regarding the grant of bail. The court emphasized that the Magistrate has the discretion to judge the materials on record and grant bail even if the offence is non-bailable or exclusively triable by a court of sessions.

R. Rajendra Babu, J.

The common question arising for consideration in all these petitions is whether the petitioners, who are accused of committing offence under S.55 of the Abkari Act and facing committal proceedings can be released on bail by the committing court. All these petitions were filed invoking S.482 of the Code of Criminal Procedure (For short the Code) for issuing a direction to the committing court to release the petitioners on bail in the event of their surrender or appearance before the committing court. As the same question is involved in all the above cases, these petitions are considered and disposed of by this common order.

2. Petitioners are accused of the commission of offence under S.55 of the Abkari Act. The allegation was that they were found in possession or transporting or keeping arrack or wash or other contraband articles. In all the above cases, the detecting officers could not arrest the petitioners either because of the absence of the petitioners at the scene of occurrence or due to their escape from the scene seeing the arrival of Excise or Police Officials. The Investigating Agency filed the charge sheet before the committing court wherein the petitioners were reported as not on bail or as absconding and committal proceedings are pending against them. In some of the cases, summons has been issued and the petitioners have accepted the summons. In few cases, arrest warrants were issued against the petitioners at the first instance as they were reported to be absconding. In all the above cases, the petitioners apprehend the rejection of bail and detention in jail, in the event of their surrender or appearance before the committing court. It was alleged that the learned Magistrates are under the view that as the cases are exclusively triable by court of

sessions, they are not competent to grant bail. Hence the main question for consideration is whether the committing court has jurisdiction to grant bail at the time of committal when the accused is alleged to have committed an offence under S.55 of the Abkari Act.

3. Heard the learned counsel for the petitioners Sri. T.G. Rajendran, R.T. Pradeep, K. Satheesh Kumar, B. Mohanlal, C. Rajendran, G. Sudheer & Sunny Mathew and learned Public Prosecutor Sri. V.K. Mohanan & N. Sukumaran.

4. Investigating Agency filed the charge sheet against the petitioners alleging the commission of offence under S.55 of the Abkari Act. Petitioners could not be arrested either due to their absence at the time of detention of the offence or due to the escape from the scene seeing the police or the excise officials. In some of the cases, it was mentioned in the charge sheet that the petitioners are absconding. In some of the cases, the petitioners received summons from the committing court but in few cases, arrest warrants are pending against them. Petitioners apprehend detention in jail in the event of their surrender as the committing courts are under the view that those courts do not have the jurisdiction to enlarge the petitioners or the accused in abkari offences on bail.

5. S.209 of the Code deals with committal of cases exclusively triable before the court of sessions. S.209 of the Code reads:

"Commitment of case to Court of Sessions when offence is triable exclusively by it:

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that offence is triable exclusively by the Court of Sessions, he shall

(a) commit, after complying with the provisions of S.207 or S.208, as the case may be, the case to the Court of session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of, the trial;

(c) send to that court the record of the case and the documents and articles, if any, which ar