The petitioner is apprehending arrest in connection with Crime No.1281/2014 of Hill Palace Police Station alleging offences punishable under Secs.402, 4065, 420, 120B r/w Section 34 IPC. The brief of the prosecution allegation is that the petitioner along with other accused in furtherance of their common intention made to believe that the accused persons would arrange Visa to the informant and collected an amount of Rs.2 Lakhs and 4 sovereigns of gold ornaments and it is alleged that they could not comply with the promise as agreed and thereby committed the aforesaid offences. After investigation, police submitted Final Report/Charge Sheet before the court below in this crime and the jurisdictional Magistrate has taken cognizance of the case and numbered the matter as C.C.No.773/2014 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam. According to the petitioner, he did not receive summons from the court below and he could not appear before the court below on the last posting date. As the petitioner did not appear, non-bailable warrant has been issued against the petitioner, it is averred. The petitioner apprehends that since non-bailable warrant is pending against the petitioner, there is every possibility that without considering his application on merits he will be remanded to judicial custody. In the light of these facts and circumstances, the petitioner has field the instant Crl.M.C seeking invocation of the powers conferred on this Court under Sec.482 Cr.P.C with the prayer to direct the Additional Chief Judicial Magistrate Court, Ernakulam to recall the non-bailable warrant issued against the petitioner in C.C./No.773/2014 and direct the learned Magistrate to enlarge the petitioner on the date of surrender itself.
2. Heard Sri.S.Rajeev, learned counsel for the petitioner and learned Public Prosecutor for the respondent- State of Kerala.
3. Sri.S.Rajeev, learned counsel for the petitioner, would reiterate the aforementioned submissions based on the pleadings on record. Learned counsel for the petitioner placed reliance on the decisions Biju v. State of Kerala (2007(2) KLT 280) and Vineeth Somarajan v. State of Kerala (2009
(3) KLT 576). It has been held in Biju's case (supra) in paragraph 18 & 19 thereof as follows:
18. As mentioned earlier, criminal courts should always be careful while passing orders on bail applications which in effect deal with personal liberty. In cases where the court decides to send an accused to custody pending trial, it must be ensured that the court applies its mind judicially and judiciously with particular reference to the facts and circumstances of the case. The mere fact that the accused had failed to respond to a summons or that the court had to issue non-bailable warrant to compel his presence will not ipso facto empower the criminal court to remand the accused to custody as a punitive measure when he appears before the court on his own volition or is produced in execution of the warrant. The bail application that may be moved on his behalf has to be considered and orders should be passed on the same day itself since personal liberty of an accused cannot be curtailed in a whimsical or disdainful manner.
19. The above observations have been made to alert the subordinate courts to ensure that the accused in criminal cases are not condemned to custody as a matter of course without a proper application of mind. Judicial process has to be blended and tempered with humaneness. Personal liberty guaranteed to every citizen has to be respected.
It is further submitted that the aforementioned ruling in Biju's case (supra) has been followed by this Court in the decision Vineeth Somarajan v. State of Kerala (2009 (3) KLT 576). On this basis the petitioner has made the aforementioned submissions and prayers.
4. On a considration of the facts and circumstances of this case it is ordered, in the interest of justice, that in the event of the petitioner appearing and surrendering before the Additional Chief Judicial Magistrate Court, Ernakulam on or before 30.1.2015 and submit necessary application for recall of non-bailable warrant and application for bail, then the learned Magistrate shall consider the said applications on the same day and on merits shall pass appropriate orders in accordancw tih law. The petitioner will be at liberty to produce before the learned Magistrate, photocopies of the aforementioned reported decisions and the learned Magistrate shall consider the applicability of the legal principles laid down there in. In the facts and circumstances, it is further ordered, in the interest of justice, that all further coercive steps purusant to the issuance of non-bailable warrant issued against the petitioner shall be kept in abeyance until orders are passed by the learned Magistrated as directed above.
With these observations and directions, this Crl.M.C stands finally disposed of.
bkn/-
ALEXANDER THOMAS, Judge.