-------- This is an application filed by the petitioner who is the first accused in CC.No.178/12 on the files of the Judicial First Class Magistrate Court, Kolencherry to recall the non bailable warrant and steps initiated under Sections 82 and 83 of the Code of Criminal Procedure and also consequential reliefs under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that the petitioner was arrayed as first accused in CC.No.178/12 on the files of the Judicial First Class Magistrate Court, Kolencherry. he was earlier released on bail with his mother and neighbour as sureties. Subsequent to his non appearance, the learned Magistrate cancelled his bail and issued non bailable warrant and later initiated proceedings under Sections 82 and 83 of the Code of Criminal procedure. The petitioner is willing to surrender but he has no other person to take on bail except the earlier sureties. He further apprehends that if he will be remanded as well. So the petitioner has no other remedy except to approach this court seeking the following relief:-
to direct the learned Judicial First Class Magistrate Court, Kolencherry to recall the non bailable warrant and Section 82/83 steps issued against the petitioner and enlarge the petitioner on bail with the same sureties in CC.No.178/2012.
3. Considering the nature of the 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. The grievance of the petitioner is that he has no other surities except his mother and one neighbour who stood as sureties for him to release him on bail earlier and so he wanted this Court to issue directions to the Magistrate to accept the old surities and release him on bail after recalling the warrant etc.
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 the petitioner was arrayed as first accused in CC.No.178/12 pending before the Judicial First Class Magistrate Court, Kolencherry. It is also an admitted fact that he was earlier released on bail by executing a bond with his mother and one neighbour as sureties. Thereafter, admittedly he did not appear later and so the learned Magistrate cancelled the bail bond and issued non bailable warrant against the petitioner. In spite of the non bailable warrant issued, the same also could not be executed against him. So the learned Magistrate initiated proceedings under sections 82 and 83 of the Code of Criminal Procedure to procure his presence. There is nothing mentioned in the petition as to why he was not able to appear the Court below even before this court. There is no material before this court to come to a different conclusion that the proceedings initiated by the learned Magistrate is illegal as well. Further once the bail bond is cancelled and non bailable warrant is issued, the Court is getting a right to proceed against sureties under Section 446(1) of Code of Criminal procedure. Once the prayer is accepted then the right of the Court to enforce the bond against the sureties will be lost and it cannot be allowed as well. So under the circumstances the prayers made in the petition as such cannot be granted.
7. The counsel for the petitioner submitted that he apprehends that if he surrenders before the Court below, he is likely to be remanded and his bail application will not be considered. That apprehension appears to be without any basis as this Court has in several matters of this nature time and again observed that there is a duty cast on the presiding officers of the Criminal Courts to consider and dispose of the bail applications as far as possible on the date of filing of the application itself unless compelling circumstances warrant the postponement of the same to a future date. So under the circumstances though the petitioner is not entitled to get the reliefs claimed 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, Kolencherry and moves for recalling the warrant and recall the proceedings initiated under Sections 82 and 83 of the Code of criminal procedure and release him on bail in CC.178/2012 pending before that Court, 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 application itself in accordance with law.
With the above directions and observations the petition is disposed of. Office is directed to communicate this order to the concerned Court immediately.
K.RAMAKRISHNAN, JUDGE R.AV