This criminal miscellaneous case is filed by the petitioner, who is the accused in L.P.No.177/2013 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta, to issue directions to the concerned magistrate under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner was arrayed as accused in O.R. No.79/2011 of Konny Excise Range, alleging offences under Section 8(i) and (ii) No.19/2013 of the Abkari Act, alleging that he was found to be in possession of four liters of arrack. He was arrested and remanded to judicial custody and later he was enlarged on bail during the crime stage and thereafter he went abroad in connection with his employment. Now he came to understand that Excise Officials filed final report before the Judicial First Class Magistrate Court-II, Pathanamthitta and it was taken on file as C.P. 32/2012 and since he did not appear, it was transferred to the register of long pending cases as L.P.177/2013 and non-bailable warrant has been issued and it is pending against him. He is prepared to surrender and face trial, but he apprehends that, if he surrenders he will be remanded to custody and his bail application will not be considered on the date of filing of the application itself. Unless a direction is given from this court, courts below will not normally consider the bail application in cases where non-bailable warrants were issued. So the petitioner has no other remedy except to approach this court, seeking the following relief:
“It is most humbly prayed that this Hon'ble court may be pleased to direct the Judicial First Class Magistrate Court-II, Pathanamthitta to consider and dispose bail application of the petitioner on the date of his surrender itself and enlarge her on bail in L.P.No.177/2013 (C.P.No.32/2012) for the ends of justice”.
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 learned Public Prosecutor.
4. The counsel for the petitioner submitted that, the apprehension raised by the petitioner is that, if he surrenders before the court below, his bail application will not be considered and he will be remanded to custody, unless a direction is given from this court, normally courts below will not consider the bail application in cases where non-bailable warrant is pending.
5. The application was opposed by the Learned Public Prosecutor on the ground that he is an absconding accused.
6. It is an admitted fact that the petitioner was arrested by Konni Excise Officials along with four liters of arrack on 11.11.2011 and O.R.No.79/2011 of Konni Excise Range was registered against him alleging offences under Section 8(i) and (ii) of Abkari Act. It is also an admitted fact that he was remanded to custody when he was produced before the court earlier and later after the same time, he was released on bail and thereafter he went abroad and even after the final report was filed, he did not appear and so the learned magistrate transferred the case to the register of long pending cases after complying with the formalities and it is now pending as L.P.No.177/2013 before that court. It is also an admitted fact that non-bailable warrant is pending against him. 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. This court has, in several petitions of this nature, time and again, observed that the presiding officer of the criminal courts are duty bound to consider and dispose of the bail applications on the date of his surrender itself, unless compelling circumstances warrant the postponement of the same to a future date. So it is not necessary to issue any direction as such claimed in the petition. However, considering the apprehension raided 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, Pathanamthitta, moves for recalling the non- bailable warrant and release him on bail in L.P.No.177/2013 (O.R.No.79/2011 of Konni Excise Range - C.P.No.32/2012) pending before that court, then the learned Magistrate is directed to consider and dispose of the application filed by him, 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 direction and observation, this criminal miscellaneous case is disposed of. Office is directed to communicate this order to the concerned court, immediately.
Sd/-
K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss