This Criminal Miscellaneous Case is filed by the petitioner, who is the 5th accused in LP.No.49/2007 pending before the Judicial First Class Magistrate Court, Thamarassery for issuing a direction to the Magistrate under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner was earlier arrayed as 5th accused in Crime No.47/2006 of CBCID, Kozhikode alleging offences under Sections 143, 147, 148, 341, 304,363, 307,395,302, 407 and 120B read with Section 149 of the Indian Penal Code. After investigation, final report was filed. Since he did not appear, the case was transferred to register of long pending cases as L.P.No.49/2007 by the learned Judicial First Class Magistrate Court, Thamarassery and non bailable warrant has been issued and it is pending against him. Though he is prepared to surrender, he apprehends that his bail application will not be considered on the date of surrender and he will be remanded to custody. So he has no other remedy except to approach this Court seeking the following relief:
Hence in the interest of justice, it is most humbly prayed that this Hon'ble Court may be pleased to direct the Judicial First Class Magistrate, Thamarassery to consider the bail application of the petitioner in LPC.No.49/2007 in CP.26/2007 of Judicial First Class Magistrate, Thamarassery, on the date of his surrender itself and not to remand the petitioner to judicial custody.
3. The counsel for the petitioner submitted that apprehension of the petitioner is that if he surrenders and moves for bail, the learned Magistrate will remand him without considering the bail application on the same date as non bailable warrant has been issued against him. Unless a direction is given by this Court, the application will not be disposed of by the learned Magistrate on the same date of filing of the application itself.
4. The application was opposed by the learned Public Prosecutor on the ground that the petitioner is an absconding accused.
5. It is an admitted fact that the petitioner was arrayed as 5th accused in Crime No.47/2006 of CBCID, Kozhikode and after investigation, final report was filed. Since he did not appear, the case against him was transferred to register of long pending cases and it is now pending as L.P.No.49/2007 before the Judicial First Class Magistrate Court, Thamarassery. Now non bailable warrant is pending against him. The apprehension of the petitioner that if he surrenders before the court and moves for bail, his bail application will not be considered and he will be remanded to custody is without any basis and not genuine. This Court has, time and again in several matters of this nature observed that the Presiding Officers of the criminal courts are duty bound to consider and dispose of the bail application filed by the accused on their surrender on the date of filing the application itself as far as possible unless compelling circumstances warrant postponement of the same to a future date. So, there is no necessity to issue any direction as such as claimed in the petition. However considering the apprehension raised in the petition, this Court feels that the petition can be disposed of as follows:
If the petitioner surrenders before the Judicial First Magistrate Court, Thamarassery and moves for recalling the warrant and for releasing him on bail in L.P.No.49/2007 (Crime No.47/2006 of CBCID, Kozhikode) now pending before that court, then the learned Magistrate is directed to consider and dispose of the bail application after hearing the Assistant Public Prosecutor of that court in accordance with law as far as possible on the date of filing of the application itself.
With the above directions and observations, this petition is disposed of.
Communicate this order to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge