-------- This is an application filed by the first accused in L.P.No.52 of 2008 in CC.No.1816 of 2006 on the files of the Judicial First Class Magistrate Court-III, Punalur to issue directions to the Magistrate to consider bail application under Section 482 of the Criminal Procedure Code.
2. It is alleged in the petition that the petitioner has been arrayed as first accused in Crime No.214 of 2005 of Kunnikode police station which was registered on the basis of a private complaint filed by the defacto complainant who is the wife against the petitioner and his father alleging commission of offences Under Section 498A and r/w 34 of Indian penal Code which was forwarded to the police for investigation under Section 156(3) of Code of Criminal Procedure on that basis also crime was registered. After completing the investigation, final report was filed and it was taken on file as CC.No.1189 of 2005 pending before the Judicial first Class Magistrate Court-III, Punalur. Since he was working abroad he could not appear and face the trial. The second accused had faced the trial and he was acquitted by Annexure-B judgment and thereafter, the case against him was split up and refiled as CC.1816 of 2006 as against the petitioner since the did not appear, after completing the formalities the case was transfered to register of long pending cases and pending as L.P.52 of 2008 before that Court now. Non bailable warrant issued against him and it is pending. Though he is prepared to surrender, he apprehends that if he surrenders he will be remanded to custody. So the petitioner has no other remedy except to approach this Court seeking the following relief:-
to release the petitioner on bail on his appearance before the court as accused No.1 in Crime No.214/2005 of Kunnikode police station -
CC.No.1816/2006 and L.P.No.52/2008 and render 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 the learned Public Prosecutor.
4. The apprehension of the petitioner is that if he surrenders before the Court below, he will be remanded to custody and his bail application will not be considered. Unless a direction is given from this court, the Court below will not consider and dispose of the bail application on the date of filing of the application itself.
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 Crime No.214 of 2005 of Kunnikode police station and after investigation, it was originally taken on file as CC.No.1189 of 2005 on the files of Judicial First Class Magistrate Court-III, Punalur and since the petitioner did not appear, the case against the second accused was proceeded with and ended in acquittal evidenced by Annexure-B judgment. Since the petitioner did not appear, the case against him was split up and refiled as CC.No.1816 of 2006 and in spite of non bailable warrant issued against him, his presence could not be procured and so the case was transfered to register of long pending cases and it is pending as LP.No.52 of 2008 before the same Court. Non bailable warrant is pending against him now.
7. The relief claimed by the petitioner that this Court will have to direct the lower Court to grant bail cannot be considered as it is for that Court to consider and exercise discretion in this regard. However, the apprehension of the petitioner that if he surrenders, he will be remanded to custody without considering his bail application is also without any basis and not genuine as this Court has in several matters of this nature time and again observed that the presiding officers of the Criminal Courts are duty bound 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 necessity to issue any direction as such claimed in the petition. But, 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-III, Punalur and moves for recalling the warrant and release him on bail in L.P.52/2008 (Crime No.214/2005 of Kunnikode police station) pending before the Judicial First Class Magistrate Court-III, Punalur, then the learned Magistrate is directed to consider and dispose of those applications after hearing 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