This Criminal Miscellaneous Case is filed by the petitioner, who is the second accused in C.C.No.2436/2009 on the file of the Judicial First Class Magistrate Court-II, Ernakulam to issue 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 arrayed as the second accused in C.C.No.2436/2009 pending on the file of the Judicial First Class Magistrate Court-II, Ernakulam alleging commission of offences under Sections 379 and 34 of the Indian Penal Code. The case was posted to 30.7.2014 for examination of the witnesses. On that day, the petitioner did not appear and non bailable warrant has been issued against him. Though he is prepared to surrender, he apprehends that he is likely to be remanded and his bail application will not be considered on the date of filing of the application itself. So the petitioner has no other remedy except to approach this Court seeking the following reliefs:
i. issue a direction to recall the non-bailable warrant against the petitioner in C.C.No.2436/2009 on the files of Judicial First Class Magistrate Court-II, Ernakulam.
ii. Issue a direction to the learned Judicial First Class Magistrate Court-II, Ernakulam to consider the petitioner’s bail application on the date of surrender itself and to grant bail.
iii. Issue such other order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
3. Considering the nature of reliefs claimed in this 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 counsel for the petitioner submitted that his apprehension is that, if the petitioner surrenders before the court below, he will be remanded and his bail application will not be considered as non bailable warrant is pending against him unless a direction is given from this Court to consider the bail application on the same date of filing of the application.
5. The application was opposed by the Public Prosecutor on the ground that the petitioner is an absconding accused.
6. It is an admitted fact that the petitioner is arrayed as second accused in C.C.No.2436/2009 pending before the Judicial First Class Magistrate Court-II, Ernakulam and since he did not appear, non bailable warrant has been issued against him and it is pending. The apprehension of the petitioner that, if he surrenders before the court below, he will be remanded and his bail application will not be considered is without any basis and not genuine. This court has time and again in several matters of this nature expressly 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 of 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 claimed in the petition. However, considering the apprehension raised by the petitioner, this Court feels that the petition can be disposed of as follows:
If the petitioner surrenders before the Judicial First Magistrate Court-II, Ernakulam and moves for recalling the warrant and for releasing him on bail in C.C.No.2436/2009 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 K. RAMAKRISHNAN, JUDGE.
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