This is an application filed by the petitioner who is the 3rd accused in C.C. No.2242 of 2009 for setting aside the order of cancellation of bail and issue direction to the Magistrate to expedite file of the case under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that petitioner was implicated as 3rd accused in Crime No.617 of 2003 of Ernakulam North Police Station alleging that he along with other accused persons have committed offence under Section 379 of Indian Penal Code. After investigation, final report was filed and it was taken on file as as C.C. 1478 of 2003 on the files of the Judicial FirstnClass Magistrate Court No.II, Ernakulam. During crime stage, he was granted bail and he was directed to appear later on summons. But, after filing the final report, he did not get summons and he went abroad in connection with the employment.
3. The case against the original 2nd accused was tried and since the present petitioner did not appear case against the petitioner was split up and was re filed as C.C. No.242 of 2009. There after, his bail was cancelled at that time. Thereafter, he filed Crl.M.C. No.3961 of 2011 before this Court and this Court by Annexure 2 order directed him to surrender before the concerned Magistrate Court within two weeks and on his surrender, court below was directed to dispose of the bail application as expeditiously as possible. Accordingly, he appeared and he was granted bail and he was regularly attending the case and the case was posted for examination of witnesses. On 12.5.2014, he could not appear and there was no representation. So, the learned Magistrate cancelled the bail and issued non-bailable warrant against him and also issued notice to the sureties. He is prepared to surrender as on account of the pendency of the case, he is not able to go abroad as well. So according to the petitioner, the cancellation of the bail by the court below is not legal and the petitioner has no other remedy, except approach this court for seeking the following relief from this Court.
a. Quash the order of cancellation of bail bond and issuance of non-bailable warrant issued as against the petitioner in connection with C.C.No.2242/2009 pending before the Judicial First Class Magistrate Court-II, Ernakulam.
b. Direct speedy disposal of C.C.2242/2009 pending before the Judicial First Class Magistrate Court-II, Ernakulam taking note of the compounding of offence by the defacto complainant.
4. Considering the nature of relief claimed in this petition, this court fell that the petition can be disposed of at the admission stage itself after hearing the counsel for the petitioner and the learned Public Prosecutor.
5. Counsel for the petitioner submitted that except on the last day of posting, he was regularly appearing and though he had entrusted his counsel to make necessary representation somehow, it was omitted to be done. So the cancellation of the bail is not proper is the contention raised by the counsel for the petitioner. Further, it is also mentioned in the petition that the matter has been compounded with the owner of the vehicle and he has no grievance against the petitioner and so direction is to be given to the court below for considering the bail application and this also will be directed to be considered by the Court below.
6. This application is opposed by the learned Public Prosecutor on the ground that he is an absconding accused.
7. It is an admitted fact that the present petitioner was shown originally as 3rd accused in Crime No. 617 of 2003 of Ernakulam Town North Police Station and during crime stage, as per Annexure 1 order, he was granted bail. It is seen from the petition that he was directed to appear on summons later by the then learned Magistrate. It is also seen from the allegations in the petition itself, that after investigation, final report was filed and it was taken on file as C.C. 1478 of 2003 originally on the file of the Judicial First Class Magistrate Court No.II, Ernakulam and since the petitioner and another accused did not appear, the case against them was split up and refiled as C.C.2242 of 2009. When he came to know about the pendancy of warrant against him, he approached this Court by filing Crl.M.C. No.3961 of 2011 and this Court by Annexure 2 order dated 19.11.2011 directed the petitioner to surrender before the Judicial First Class Magistrate Court within two weeks from the date of order and convince the court reason for his non appearance and directed the learned Magistrate to dispose of the bail application as expeditiously as possible. Accordingly, it is seen from the allegation that he surrendered before the Magistrate Court and he was granted bail and he was appearing and the case against the 1st accused in this case was split up and the learned Magistrate has decided to proceed against the present petitioner. On 12.5.2014 he did not appear and there was no representation and CW3 was present and so it is seen from Annexure 3, that the learned Magistrate cancelled the bail bond and issued non bailable warrant to the petitioner and also ordered notice to the sureties and the witness was bound to appear on summons. This order is being challenged by the petitioner.
8. When the accused was absent and there was no representation, the learned Magistrate cannot be blamed for cancelling the bail bond and issuing non-bailable warrant, but, however if the petitioner surrenders before the Court below and convinces that court regarding the reason for non appearance, then that can be considered by that Court. So this court cannot now using the power under Section 482 to quash the order of cancellation of bail and the petition can be disposed of as follows:-
(i) If the petitioner surrenders before the Judicial First Class Magistrate Court Ernakulam and moves for recalling the warrant and also released him on bail in C.C. 2242 of 2009 pending before that court, then the learned Magistrate is directed to consider and dispose of those applications taking note of the fact if any compounded application is filed before that Court and pass appropriate order in accordance with law on the same dater after filing itself after hearing the Assistant Public Prosecutor of that Court in accordance with law.
(ii). Considering the fact that original case is of the year 2003 and the present case is as also of the year 2009, the learned Magistrate is directed to dispose of the case as expeditiously as possible at any rate within four months from the date of receipt of the order. If the petitioner submits any compounding application, the court below is at liberty to consider that application and pass appropriate orders in accordance with law.
With the above direction and observation, the petition is disposed of.
Hand over a copy of the order to the counsel for petitioner so as to produce the same before the concerned court. Office is also directed to communicate this order to the court below at the earliest.
K.RAMAKRISHNAN, JUDGE.
SKV