Baby Gireesh vs State of Kerala

K. Ramakrishnan, J.—This Criminal Miscellaneous Case is filed by the petitioner who is arrayed as accused in C.C. No. 1852/2010 on the files of Judicial First Class Magistrate Court-III, (Munsiff Court), Ernakulam to issue direction to the Magistrate under Section 482 of the Code of Criminal Procedure.

The case of the petitioner in the petition is that he is the accused in C.C. No. 1852/2010 originated on the basis of the private complaint filed by the complainant alleging offences under Section 138 of the Negotiable Instruments Act and it is pending before Judicial First Class Magistrate Court-III, (Munsiff Court), Ernakulam. It is submitted that the petitioner was unaware of the proceedings and in fact, he had not received any summons from the court below and he did not appear before the court below. Consequent to the non appearance of the petitioner, the learned magistrate issued non bailable warrant to the petitioner. Though the petitioner is prepared to surrender, in view of the pendency of non bailable warrant against him, 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 relief:

To direct the Hon''ble Munsiff''s Court-III, Ernakulam to grant bail to the petitioner in the event of his appearance before the Court below in connection with C.C. No. 1852/2010 notwithstanding the issuance of Non Bailable Warrant and further to keep in abeyance the coercive proceedings, or in the alternative, to consider the application for bail on the date of surrender, in the interest of justice.

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 dispensing with notice to the complainant.

Learned counsel for the petitioner submitted that his only apprehension is that if he surrenders, his bail application will not be considered on the same day and he will be remanded to custody.

The petition was opposed by the Public Prosecutor on the ground that the petitioner is an absconding accused.

It is an admitted fact that the petitioner is the accused in C.C. No. 1852/2010 on the files of Judicial First Class Magistrate Court-III, (Munsiff Court), Ernakulam alleging offences under Section 138 of Negotiable Instruments Act. Since he did not appear, non bailable warrant has been issued against him and the same is pending. The prayer in the petition to issue direction to the magistrate to grant bail cannot be granted it will amount to usurping the discretion of that court. The apprehension of the petitioner that, if he surrenders before the court below and moves for bail, he will be remanded and his application will not be considered on the date of filing itself is not genuine and without any basis. This Court has time and again observed in several petitions of this nature that the Presiding Officers of the criminal courts are duty bound to dispose of the bail applications, if any, filed by the accused persons on their surrender 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 sought for in the petition. However, considering the apprehension expressed 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, (Munsiff Court), Ernakulam and moves for recalling the warrant and for releasing him on bail in C.C. No. 1852/2010, now pending before that court, then, the learned Magistrate is directed to consider and dispose of the bail application after hearing the Counsel for the complainant as well accordance with law as far as possible on the date of filing of the application itself.

With the above direction and observation, the petition is disposed of.

Office is directed to communicate this order to the concerned court immediately.