-------- This is an application filed by the petitioner who is the second accused in CP.No.10 of 2013 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam to issue directions to the Magistrate under Section 482 of the Criminal Procedure Code.
2. It is alleged in the petition that the petitioner is arrived as second accused in Crime No.1005 of 2012 of Udayanperur police station which was registered on the basis of the statement given by the defacto complainant alleging offences under Section 143, 147, 148, 447, 427, 294(b) 323 and 308 r/w Section 149 of Indian Penal Code. After investigation final report was filed and it is now pending before the Additional Chief Judicial Magistrate Court, Ernakulam as CP.No.10/2013. Since he was in gulf country he could not appear and take bail during investigation stage or later. Now it appears that non bailable warrant has been issued against him and in view of the pendency of the non bailable warrant, even if he surrenders he will be remanded to custody without considering his bail application and unless a direction is given from this Court, the learned Magistrate will not consider the bail application as well. So the petitioner has no other remedy except to approach this Court seeking the following relief:-
to direct the Additional Chief Judicial Magistrate Court, Ernakulam to consider the bail application filed by the above name petitioner on the date of surrender and he further pleased to direct the Magistrate to enlarge him on bail.
3. Considering the nature of relief claimed in the petition this Court feels that the petition can be disposed of at the admission stage itself after hearing the counsel for the petitioner and the learned Public Prosecutor.
4. The counsel for the petitioner submitted even though he is prepared to surrender, he apprehends that his bail application will not be considered and he will be remanded to custody. Unless a direction is given from this Court, it is the usual practice of the Criminal Courts that in cases where non bailable warrants were issued, the accused, on surrender, will be remanded and the bail application will be considered only later.
5. The application was opposed by the learned Public Prosecutor on the ground that the petitioner was absconding.
6. It is an admitted fact that the petitioner was arrayed as second accused in Crime No.1005 of 2012 of Udayanperur police station alleging offences under Section 143, 147, 148, 447, 427, 294(b) 323 and 308 r/w Section 149 of Indian Penal Code and after investigation final report was filed and it is now as CP.No.10/2013 before the Additional Chief Judicial Magistrate Court, Ernakulam. It is also an admitted fact that since the petitioner did not appear personally but appeared through counsel when summons received and filed application to condone his absence and that was once allowed but on the second occasion when such an application has been filed it was dismissed and non bailable warrant has been issued against him. It is an admitted fact that he was not granted bail during the crime stage. The apprehension of the petitioner that if he surrenders before the Court below he will be remanded and his bail application will not be considered is without any basis and not genuine. This Court has in several matters of such nature time and again observed that the presiding officers of the Criminal Courts are duty bound to consider and dispose of the bail applications if any filed by the accused on their surrender as far as possible on the date of filing of the applications itself unless compelling circumstances warrant postponement of the same to a future date. So there is no necessity to issue any direction as such claimed in the petition. However, considering the apprehension raised by the petitioner in the petition, this Court feels that the petition can be disposed of as follows:-
If the petitioner surrenders before the Additional Chief Judicial Magistrate Court, Ernakulam (Crime No.1005 of 2012 of Udayanperur police station) pending before that Court and moves for recalling the non bailable warrant issued against him and release him on bail, then the learned Magistrate is directed to consider and dispose of those applications after hearing the Assistant Public Prosecutor of that Court as far as possible on the date of filing of the applications itself.
With the above directions and observations this petition is disposed of. The Office is directed to communicate this order to the concerned Court immediately.
Hand over a copy of the order to the counsel for the petitioner also so as to enable him to produce the same before Court below along with the petition to be filed before that Court.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV