-------- This is application filed by the petitioner who is the second accused in CC.No.1021 of 2002 and pending as L.P.No.37 of 2010 on the files of the Judicial First Class Magistrate Court-II, Ernakulam to issue directions to consider and to dispose of his bail application to the Magistrate under Section 482 of the Criminal Procedure Code.
2. It is alleged in the petition that the petitioner has been implicated as second accused in CC.No.1021 of 2002 on the files of the Judicial First Class Magistrate Court-II, Ernakulam alleging commission of offences Under Section 498A of Indian penal Code. He had not received any summons from the court. So he could not appear. But it is later understood that case against hims was transferred to register of long pending cases and pending as L.P.37 of 2010. In fact, the matter has been settled between the parties long ago and he was under the impression that the cases were withdrawn by the parties. However, he is prepared to surrender before the court below, but on account of the pendency of the non bailable warrant issued against him, he apprehends that he will be remanded to custody and his abil applciation will not be considered by the Court below. SO the petitioner has no other remedy except to approach this Court seeking the following relief:-
(a) to consider and dispose of the bail application filed by the petitioner, in L.P.No.37/2010 in the files of the Judicial First Class magistrate Court-II, Ernakulam, on the same day of his surrender.
3. Considering the nature of relief claimed in the petition, this Court felt 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. Counsel for the petitioner submitted that his only apprehension is that if he surrenders before the Court below, without considering his bail application, he will be remanded to custody. unless a direction is given from this court, to consider the bail application on the date of filing of the application itself that will not be considered by the learned Magistrate.
5. The application was opposed by the Public Prosecutor on the ground that he is an absconding accused.
6. It is an admitted fact that petitioner was arrayed as second accused in CC.No.1021 of 2002 on the files of Judicial First Class Magistrate Court-II, Ernakulam and since the petitioner did not appear, the case against him was transferred to register of long pending cases and it is pending as L.P.No.37 of 2010. It is also an admitted fact that non bailable warrant is pending against him.
7. The apprehension of the petitioner that if he surrenders before the Court below, he will be remanded to custody without considering his bail application is without any basis and not genuine as this court has in several matters of this nature has time and again observed that there is a duty case on the presiding officers of the Criminal Courts 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 application itself, unless compelling circumstances warrant postponement of the same to a future date. So in fact there is no necessary to issue any such direction as claimed in the petition. But, 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 Judicial First Class Magistrate Court-II, Ernakulam in L.P.37/2010 (CC.No.1021/2002) pending before that Court and moves for recalling the warrant and release him on bail, then the learned Magistrate is directed to consider and dispose of those applications after hearing Assistant Public Prosecutor of that Court or it is a private complaint, the counsel for the counsel for the complainant as far as possible on the date of filing itself in accordance with law.
With the above directions and observations this petition is disposed of. Office is directed to communicate this order to the concerned court immediately.
sd/-
K.RAMAKRISHNAN, JUDGE R.AV